NEW  JERSEY  EQUITY  REPORTS. 


H.  W.  GKEEN,  I. 


S^.       ^?0rM, 
1 

REPORTS   OF  CASES 


DETERMINED    IN    THE 


Court    of  Chancery 


OF  THE 


STATE  OF  NEW  JERSEY, 

From  January,  1838,  to  October,  1841,  inclusive. 


VOL  I. 
BY  HENRY  W.  GREEN,  Reporter. 


SECOND  EDITION. 

Wrrn  RICFEBENCES  SHOWING  WHERE  THB  CASES  HAVE  BSEX  CITED,  ArT 
O  •EKBULED,  QUESTIONED,  LOOTED,  ETC.,  DOWN  TO  VOL.  38,  N.  J.  LAW 
REPOBTS  (9  VKOOM),  AND  VOL,  27,  N.  J.  EQTT.  REPOBTS 
(12  C.  E.  GEEEN),  INCLUSIVE. 


BY  JOHN  LINN,  ESQ.,  OF  THE  HUDSON  COUNTY  BAB. 


JERSEY   CITY: 

FREDERICK   D.  LINN  &  CO. 
1886. 


Tins  volume  contains  the  Opinions  delivered  in  the  Court  of 
Chancery  since  the  appointment  of  the  present  Reporter.  Item- 
braces  the  Opinions  of  Chancellor  PENNINGTON  from  the  com- 
mencement of  his  term  of  office  to  the  close  of  the  last  year. 
The  previous  volume  of  the  New-Jersey  Chancery  Reports,  by 
Mr.  Saxton,  closes  with  the  opinions  delivered  at  July  term, 
1832.  The  cases  from  July  term,  1832,  to  October  term,  1837, 
inclusive,  remain  unpublished.  It  was  the  design  of  the  Re- 
porter to  have  published  those  opinions  before  the  publication  of 
tho  present  volume,  in  order  that  the  Reports  might  have  been 
furnished  to  the  profession  in  a  regular  series.  But  the  execution 
of  that  purpose  has  been  prevented  by  the  impossibility  of  pro- 
curing in  season  all  the  opinions  delivered  during  that  period 
which  it  was  deemed  important  to  publish.  A  large  portion  of 
tli3m  are  now  in  the  hands  of  the  Reporter,  and  will  be  pub- 
1'shed  as  soon  as  the  requisite  number  can  be  obtained  to  com- 
plete the  volume. 

The  law  authorizing  the  appointment  of  the  Reporter  in 
Chancery,  directs  the  publication,  also,  of  cases  decided  in  the 
Prerogative  Court  of  this  state.  The  few  cases  decided  in  that 
court  which  were  deemed  of  sufficient  interest  to  warrant  their 
publication,  are  included  in  the  present  volume. 

TRENTON,  30th  April, 


778378 


CASES 
REPOETED  IN  THIS  YOLUME. 


The  letter  v.  follows  the  name  of  the  plaintiff 


Allen,  exparte,        .        .  888 

Allen,  Dickey  v.  40 

Allen's adm'r  v.  Woolley's ex'rs,  209 
Allen's  cx'rsDare's  adm'rs  v.  288,415 
Andruss,  Goble  v.  .  66 

Autcn,  Howell's  ox'rs  v.     ,         44 


B 


Bailey  v.  Stiles;  ."""^       220 

Bassett  v.  Johnson,  .  .154 
]  Jerry  v.  Van  Winkle's  ex'rs,  269,890 
Bonnell,  Crana  v.  ,  .  2G4 
Bowen  v.  Vickers,  .  .  520 
Brittan,  Chetwood  v.  .  438 
Erookfield  v.  Williams,  .  841 

Brnen  v.  Crane,  .        .        347 

Buck,  Torrey  v.  .  .  .866 
Burns,  Faulks  v.  |f  .  250 


Cammack  v.  Johnson,  ,  163 
Champion,  Flanagin  v.  .  ,51 
Chester  v.  King,  .  .  405 
Chetwood,  Miller  v.  .  .199 
Chetwood  v.  Brittan,  .  438 
Clevenger,  Edgar  v.  .  .  258 
Corey  v.  Voorhies,  .  .  5 
Coster  v.  The  Monroe  Manu- 
facturing Co.  .  •  467 
Cose  v.  nalsted,  .  .  .811 
Coykendall  v.  Rutherford's 

ex'x         ....  860 

Craip,  Penn  v.       .        .  .    495 

Cramer,  Read's  adm'rs  v.  .  277 


Orane  v.  Bonnell,  .        ,  264 

Crane,  Brucn  v.          ,        .  847 

Curtis,  Phelps  v.    .        .        .  387 

Cuttrell,  Schcnck's  adm'r  v.  297 


Dare's  adm'rs  v.  Allen's  ex'r  288,415 
Decamp  v.  Decamp,    .        . 
Deraeritt,  Neville  v. .     . 
Dickey  v.  Allen 
Donnington's  adm'r  v.  Mitch- 
ell's adm'x  .        .       t 
Drake,  Read  v.    .        . 
Dummer,  Whiter.         , 
Darling,  Hazen  v.       .        . 
Dyer,  Wetmore  v. 


294 

321 

40 

243 

78 

C27 

133 

386 


E 


Edgar  v.  Clevenger,    .        .        258 
Eldridge's  adm'rs,  Garwood  v. 

145,  290 
Elizahcth-Town  and  Somervillo 

Railroad  Co.,  Ross  v.      .        423 

Ely  v.  Perrine,       .        .        .    306 

Exparte,  Van  Vorst's  heirs         292 

"      Allen,    .       .       .        888* 


Faitoute's  ex'rs  v.  Haycock,  105" 
Faulks  v.  Burns  .  .  250 
Flanagin  v.  Champion,  .  .  61 
Flax  and  llemp  Manufactur- 
ing Co.,  Grosvenor  v.  .  453 
Flock,  Gest  v.  .  .  .  1(  8 
Frazee  v.  Inslee,  .  '  .  239 


VI, 


TABLE  OF  CASES. 


G 


Gars-cod  v.  Eldridge's  adro'rs.* 

145,  290 

(lest  v.  Flock,     ...        108 
Goble  v.  Andrnss,  .        .       66 

Graecen  v.  Graecen,    .        .        459 
Crosveuor  v.  The  Flax  and 
IIouip  Manufacturing  Co.    .    453 


H 


IT  allied,  Ccxe  v.         .  .        311 
Ilartshorne  v.  Hartshornc,     .    349 

Ilatficld,  Ross  v.          .  .        363 
Haycock,  Faitonte's  ex'rs  v.  .    105 

Iliizen  v.  Burling,       .  .        133 

lloagland  v.  Hoagland,  .     501 

u       v.  Latourette,  .        254 

llowell's  ex'rs  v.  Auten,  .      44. 

I&J 

Inslec,  Frazce  v.         .  .        239 

1  V.IRS,  Layton  v.     .        .  .    387 

Johnson,  Bassett  v.    .  .        154 

"        Camuaack  v.  .  .163 


King,  Chester  v.         .        •       405 


Latonrctte,  Hoagland  v. 

Lay  too  v.  Ivans,     .        .       "« 

I  illy  v.  Quick,   . 

Ixnibat,  V  reel  and  V,       .        , 

I.wve  v.  Williairson,  , 

Lowmason,  Vliet  v.       .        , 

M 

Manners  v.  Manners,  .  ,  884 

Mrltthewsv.  Roberts,  .  .  338 

McEwtn,  Van  Waggoner  v.  412 

Me  cely,  Stillwcll  v.  .  805 

Alcrwin  v.  Smith,  .  .  182 

Miller  v.  Miller,  .  .  139 

"  v.  CLetwood,  .  .  199 
Mitchell's  adm'x,  Donning- 

ton's  udoi'r  v.          •  243 


Mxmroe  Manufacturing  Co. 
Ccstor  v 

N 

Neafie,  Woodhull  v.  .        . 
Neville  v.  Demeritt,  ^  . 

O 

Oakley  v.  Faterson  Bank, 

"      v.  O'Neill,       . 
Outor.lt  v.  Van  Winkle, 


Paterson  Bank,  Oakley 
Penn  v.  Craig,    .         , 
Perrine,  Ely  v.       . 
Phelps  v.  Curtis, 
Pittenger,  Robeson  v. 
Price  v.  Smith,   . 


Q 


Quick,  Lilley  v.am 


467 


409 
821 


El  73 
287 
613 


173 
4.95 
396 
387 
57 
516 


[97 


Read  v.  Drake,           .        .  78 

Read's  adm'rs  v.  Cramer,        .  277 

Richmond  v.  Richmond,      .  90 
Riggins,  Seaman  v.        .        .214 

Roberts,  Matthews  v.         .  338 

Robeson  v.  Pittenger,     .        .  67 

Ross  v.  Ilatficld,         .        .  363 
"    v.  The  Elizabeth-Town 
and  Somerville    Railroad 

Co 422 

Rosscll,     trustee,     Trenton 

Banking  Co.  v.        .        .492,511 
Rutherford's  ex'x.  Coyken- 

dall  v.  360 


S 


Salter  v.  "Williamson,          .  480 

Schenck's  adm'r  v.  Cottrell,  297 

Scamon  v.  Riggins,        .        .214 

Smith,  Price  T.          .       .  516 

44      West  v.        ...  309 

u      Morwin  v.        .         .  182 

Snowhill  v.  Snowhill's  ex'r,    .  80 


TABLE   OF   CASES. 


ViJ. 


Ptiles.  Bailey  v.  . 

bt  ill  well  v.  McNeely, 
Striker,  WJiitenack  v. 


Taylor  v.  Thomas,  .  .  •  106 
Torrey  v.  Buck,  .  .  .  366 
Trenton  Banking  Co.,  v. 

ttoodruff,  .  .  .  .117 
Trenton  Banking  Co ,  v. 

liossell,  trustee,  &c.         492,  511 


Van  Riper  v.  Van  Ripers  ex'rs,  1 
v.  Williams  .  407 
VanWnggoner  v.  McEwen,  .  4 1?/ 
Van  Winkle,  Outcalt  v.  .  513 
VauWiukle's  ex'rs,  Berry  v.  269,390 


VanVorst's  heirs,  exparte,  .     292 

Vickers,  Bowen  v.      .        .  520 

Vliet  v.  Low  mason,        .  .    404 

Voorhees,  Corey  v.     .        .  6 

Vreeland  v.  Loubut        .  104 


"West  v.  Smith,    ...  309 

Wetmore  v.  Dyer,          .        .  38f» 

Wliite  v.  Duminer,     .        .  627 

Whitenack  v.  Stryker,    .        .  8 

Williams,  B  rook  field  v.       .  341 

Van  Riper  v.          .  407 

Williamson,  Low  v.     .        .  82 

Salter  v.        .        .  4SO 

Woodhnll  v.  Neafie,     .        .  409 
Woodruff,  Trenton  Banking 

Co.  v.          .  117 
Woolley's  ex'rs  Allen's  adm'rs  v.  209 


CASES 
CITED  IN  THIS  VOLUME 


Al«agcr  v.  Rowley,  6  Ves, 

jr.,  749    • 

Am'er  v.  Amler,  3  Vcs. 583 
Askew    v.    Odcnheimer    1 

Bald.  3SC    , 

B 

Budccley  v.  Bruce  4  Paige  98 
Bailey  v.  Wright,  18  Vesey 

49       . 
Barrow  v.  Bispham,  6  Ilalst. 

119          . 
Bates  v.  Dclevan,  5  Paige 

307 

Bedell  v.  Bedell,  1  Johns. 

Ch.  C04.      . 
Belts  v,  Betts,  1  Johns  Ch. 

198  . 

Billings  v.  Brooksbank,  19 

Vcsey  505 
B'mgham  v.  Bingham,  1  Vc- 

fioy  sen.  126 

IJlmint  v.  Bestland,  15  Ve- 
sey 515       .        .        .        . 
Bottle  v.  Bluudcll,  Ccopers 

Eq.,  136      . 

Brodorick  v.  Brodrrick,  1  P. 
I     Wms.239   . 
Bmnpusv.  Platncr,  1  Johns. 

Ch.  213       . 
Burtis  v.  Hopkins,  Adm'rs 

0 

Cad  man  v.  Homer,*  18  Ve- 

Boy  11 
Campbell     v.    Western,    3 

Paige  138   . 
Champion  v.  Brown,  6  Johns 

<  h.  402       .. 
Cliaso  v.  Lincoln,  8   Mass. 

Copper  v.  Weils,  Saxt.  10 


Coster  v.  Murray  6  Johns. 

Ch.  522       . 

212 

Cumberland  v.  Coddingten. 

74 

3  Johns.  Ch.  261 

858 

115 

Curtis  v.  Curtis,  2  Brown 

Ch  620                :. 

3:6 

238 

•    D 

Davis  v.  Dinmoody,  4  Tern 

356 

Rep.  C78     . 

101 

Docoucho    v.    Savctier,    3 

249 

Johns.  Ch.  216    .         .         : 

212 

DcMantort  v.  baunders,  20 

526 

E.C.L.  410           .        . 

1C9 

Den   v.  Vancleve,  4  Wash. 

526 

C.  C.  267 

85 

Deu  v.  Zellers,  2  Ealst.  154 

195 

93 

Denton  v.  Stewart,  1  Cox 

258              .... 

275 

142 

DeRiemcr  v.  DeCantillon,  4 

Johns.  Ch.  88              .        : 

286 

232 

Devan  v.  Fowler,  2  Paigo 

402      .        .        , 

ir.s 

286 

Dixon  v.  Parker,  2   Vesey 

sen.  225       .... 

263 

421 

Douglass  v  Sherman,  1  Paige 

Ch    858 

906 

231 

Duncan  v.  Dodd,  2  Paige  69 

216 

380 

C 

477 

Earl  of  Clarendon  v.  Ilors- 

489 

Icy,  1  P.  Wins.  447     , 

345 

Elliott  v  Collier,  3  Atkyns 

526      . 

247 

Evnns  v.  Llewollen,  2  Brown's 

Ch.  151       .        .        .    :,. 

286 

207 

Esparto  Coster,   2    Johns. 

Oh.  503                .        .        . 

151 

301 

Esparto  Hamper,  17  Vescy 

410     

169 

256 

Esparto  Ilodgkins,  19  Ve- 

sey, 294      .         .                 . 

1P.9 

232 

Exparto  Lay  ton,    6   Vesey 

•276 

438      i        .                 . 

170 

TABLE    OF    CASES    CITED. 


IX. 


Expnrte  Norfolk,  19  Vesey 
4J6  .  .  .  .169 

F. 

Finch  v.  Earl  of  Wincbel- 
sea,  1  P.  Wins.  282  .  257 

Fotherby  v.  Pate,  3  Atkyns 
605  ....  74 

French  v  Chase,  6  Greenl. 

1C6  .  170 

G. 

Ceo  v.  Spencer,  1  Vernon, 

35  ....  286 
Glass  v.  Oxonham  2  Atkyns 

121  ...  74 

Goodrich  v.  Pemlleton,  8 

Johns  Ch.  887  .  .  212 
Green  v.  Smith,  1  Atkyns 

572  .  .  .  256 

Greenaway  v.  Adams,  12 

Ves.jr.  395         .  ,        275 

n. 

ITarney  v.  Ilarncy,!  P.Wms. 

125  ...  .  126 
Hatch  v.  Cobb,  4  Johns.  Ch. 

559.  .  .  .  275 

Iltuvkins  v.  Hawkins,  10 

Eng.  C.  Ch.  2  249 

Herbert  v.  Tuthill'a  Ex'rs.  1 

Saxt.  14  ...  114 
Herrick  v.  Blair,  1  Johns. 

Ch.  101  ...  301 

Holland  v.  Prior,  8  Con. 

En?.Ch.487  .  .  75 

Howell's  Ex'rs.  v.  Anten.  1 

Green  Ch.  44  831 


J. 


Jackson  v.  Fuller,  4  Johns. 

215  .  .  *  519 

James  v.  Johnson,  6  Johns. 

Ch.  420  .  .  266 

Jewson  v.  Monlson,  2  Atk; 

420  ',  '  .  .  '  .  516 
Johnson  v.  Gere  2  Johns. 

Ch.547  .  .  .  4i3 

Jcncs  v.  Clark,  20  Johns. 

60  .  fil9 


K. 

KempshaL  v.  Stone,5  Johns. 

Ch.  194  ..  . 

Kane  v.  Bloodgood,  7  Johns. 

Ch.  90.  ... 
Ketcham  v.  Evertson,  18 

Johns.  363  .  . 

King  v.  Berry's  Ex'rs.  . 
King  v.  Morford  et  al.  Saxt. 

274,  281  .  . 


Lechmere  v.  Brazier,  2  Jao. 

&  W.  286  .  . 

Leggett  v.  Dubois,  2  Paige 

Ch.  212  .  .  . 
Lilly  v.  Quick,  1  Green  Ch. 

97  ... 

Lord  v.  Baldwin,  6  Pick, 

348  .... 
Lord  Carrington  v.  Payne, 

6  Vesey,  4L1  .  . 

Lyon  v.  Richmond,  2  Johns 
Ch.  60 


M, 


«iohn9. 


275 
212 

5-5 

487 

203 


402 
366 
126 
170 
232 
150 


Mai  in   v.    Malin, 

Ch  238  ...  807 
Marks  v.  Pell  1  Johns.  Ch. 

598  ...  266 

McKircher  v.  Hawley,  16 

Johns.  288  .  .519 

Mcrwin  v.  Smith,  i  Green 

Ch.  182  .819,497 

Miller  v.  Chetwotxl,  i  Green 

Ch.  1  99  .  403 

Miller  v.  Miller,  6  Johns. 

Ch.91.  .  .  93 

Miller  v.  Wack,  \  8a.-rt.  2i4  ii!6 
Mitford  v.  Mitford,  9  Vesey 

87  ...  5i6 

Mohawk  Bank  v.  Atvatci-2 

Paigo  Ch.  60  .  .  319,334 
Moody  v.  Payne,  2  Johns. 

Ch.  548  .  .  168 

Morris'  Ex'rs.  v.  Swartwoat  2i6 
Mortlock  v.  Butler,  lO  Ve- 

Bcy,  292.  .  .  207 

Moss  v.  Gallimore,  Dong. 

279  ....    519 


TABLE    OF    CASES    CITED. 


Mullett  v.  Hook,  22  Eng. 

COM'.  Law.  259          •        .    170 
Wundy  v.  Mundy,  2   Ves. 

jr,  128         .        .        .        .    356 


Newland    v.  Champion,  1 
Vesey  sen,  105 

O 


Palmer  v.  Fletcher,  1  Lev- 

inz  122       ... 
Perry  v.  Wright,  1  Cond. 

Oh  188 
Pearson  v.  Morgan  2  Brown 

Ch.  389       . 
Phillips    v.    Thompson,     1 

Johns,  Ch.  131  .        , 

Pope  v.  Biggs,  9  Barn  and 

Cress  245  .        . 

R 


74 


Osgood  v.  Franklin,  20  Johns 
Oh.  21  .    115 


62 
153 
d80 
275 
519 


21G 


Regua  v.  Rea,  2  Paige  339 
Rich  v.  Jackson  4  Brown  C. 

C.  519         .        .        .        .    207 
Robinson  v,  Cropsev  2Edw 

Ch.  138      ....    266 
I  odgcrs  v.  Rodgers,  1  Paige 

426  ....    171 

Rodman  v.  Zilley,  Saxt  326  208,402 
Roffey  v.  Shnllcross,  4Madd, 

227  .  402 

Roosevelt  v.  Gardner,  2  Pen- 

ning, 791  .  47 

Roosewell  v.  Pryor,  6  Mci. 

116  ....       63 

Russell  v.  Austin,  1  Paige 

193  ....    339 


Scheiflin  v.  Stunrt,  1  Johns, 
Ch.  C25  .... 

Bclmykr  v.  Iloyle,  6  Johns 

Ch.  190  421 


Seymour  v  Delancey,  6  Johns 

Ch. 226  .  .  .  .402 
Shannon  v.  Marseles,  Saxt  . 

426       :  413 

Slee    v.   Manhatten,    Co.  1 

Paige  56  a    266 

Bonders  v.  Vansyckle,  et  al 

3Halst313  .  .  .518 
Squib  v.  Wyn,  1  P.  Wins. 

3,8  .  .  .  .  .  247 
Starr  v.  Ellis,  6  Johns.  Ch. 

395  .         .    '     •         .      33G 

Stevenson,  et  al  v.  Black, 
Saxt.  342       .         .  .  197,3£3 

Stewart  v.  Stewart  7  Johns 

Ch.  229  .,.  247,24'J 
Stem's  v.  Barker,  6  Johns. 

Ch. 170  .  .  •  .  .  150 
f-'tory  v.  (Mine,  12  Mass  i57  C4 
Strong  v.  Stewart,  4  Johns. 

Ch.  167       ,  .  206 

Stewart  v.  Stewart,  7  Johns. 

Ch. 229  ...  .  131 
Swaine  v.  Perrine,  5  Johns. 

Ch.  488  .         .    356 


Taylor  v.  Fields,  4  Ves.  396  168 
The  Ordinary  v.  RoHnson,  1 

Halst.  195  ...  127 

The  Ordinary  v.  Snook,  5 

Halst.  C5  .  130 

The  People  v.  Dunlap,  13 

Johns.  440  .  .  .185 
Thompson  v.  Brown,  4  Johns 

Ch. 625  .  .  .  .138 
Tice  v.  Annin,  2  Johns. 

Ch.  125  ...  350 

Tiernan  v.  Wilson,  6  Johns 

Ch.  411  .  .  196,497 

Tittcnson  v-  Peat,  3  Atkyns 

•526  .  .  .  .301 

Tonlmin  v.  Steel,  3  Merriv. 

221  .  .  ' ,  .  .  152 
Town  v.  Needham,  3  Paige. 

Ch.553  .  .  .345 

Trenton  B'k'g  Co.  v.  Wood- 
ruff, 1  Green  Ch.  292  .  292 
Trower  v.  Newcomc,  8 

Merriv.  704          .  .        208 


TABLE    OF    CASES    CITED. 


XI. 


Underbill  v.  Van  Cortlandt 
2  J.  Ch.  301        .  .         301 

V. 

Van     Alst    v.   Hunter,     5 

Johns.  Ch.  148        .        .         160 
Van  Bergen  v.  Van  Bergcu, 
3  Johns.  Oh.  237  64 

Van  Epps   v.  Sehencctady, 

12  Johns.  436         .          .         525 
Van  Epps  v.  Van   Deusen, 

4  Paigo,  64         .  .        516 

Van   Vechten   v»  Terry,   2 

Johns.  Ch.  238  .        307 

Vceder  v.  Foada,  3  Paiga 

07  ..  .        208 

W. 

'Waring  v.  Ward,  7  Ves.  jr. 
337  .  .  3B8 


Watt  v  Watt,  3  Ves.jr.244  247 
Wildman  v.  Wildrnan,  9  Ves. 

174.  .  .  .421 

Wilkinson  v.  Parish,  3  Paige 

653  ..  .  .  36G 

Williams  v.  Williams  9 

Mod.  299  .  .  74 

Williamson  v.  Williamson, 

3  Johns.  Ch.  290  .  216 

Winch  v.  Winchester,  , 

1  Vcs.  &Beam  878  .  207 
Woods  v.  Monell  1  Johns. 

Ch.  502  ,  .  197,319,497 
Wyndham  v.  Chetwood,  . 

1  Burr,  424  .          .        131 


Y. 


Youle  v.  Richmond,  Saxton, 
637         «  * 


268 


CASES 

ADJUDGED  ft 

THE  COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW-JERSEY. 
JANUARY  TEEM,  1838. 

WILLIAM  PENNTNGTON,  Esq.,  CHANCELLOB,. 


JAMES  VAN  RIPER  and  PHILIP  VAN  RIPEB  v.  ADRIAN 
RIPER  and  ABRAHAM  VAN  RIPER,  executors  of  PTTTLTP  YAK 
RIPER,  deceased. 

A  legacy  will  be  presumed  to  be  a  satisfaction  of  a  demand  against  the  testa- 
tor, where  there  are  no  circumstances  showing  a  different  intention. 

The  general  rale,  that  a  legacy  will  be  deemed  a  satisfaction  of  a  debt  dne 
from  the  testator  to  the  legatee,  is  not  favored,  and  applies  only  whore  no 
presumption  to  the  contrary  can  be  drawn  from  the  face  of  the  will. 

Where  the  testator  by  his  will  directs  the  executors  "  to  pay  all  his  jast  debts;" 
where  the  legacy  is  payable  when  the  legatee  arrives  at  age  and  whero  the 
debt  is  in  a  measure  unliquidated,  the  legacy  .is  no  satisfaction  of  the 
debt. 

A  present  debt  can  never  be  satisfied  by  a  contingent  legacy. 

THE  bill  was  filed  by  the  children  and  next  of  kin  of  Abraham 
P.  Van  Riper,  for  the  recovery  of  their  distributive  share  of  his 
estate.  It  charges,  that  Abraham  P.  Van  Riper  died  intestate ; 
that  his  estate  came  to  the  hands  of  Philip  Van  Riper,  one  of  his 
administrators ;  that  Philip  Van  Riper  afterwards  died,  having 
executed  his  last  will  and  testament,  and  appointed  the  defendants 


CASES  IN  CHANCERY, 


Van  Ripers  v.  Van  Riper's  Executors. 


his  executors.  The  bill  prays  an  account,  and  a  decree  for  the 
clear  residue  after  the  payment  of  debts.  The  answer  admits 
the  material  allegations  of  the  bill,  but  insists  that  the  claim  of 
the  complainants  was  satisfied  by  certain  devises  and  legacies  to 
them,  contained  in  the  last  will  of  the  said  Philip  Yan  Riper. 
The  only  question  submitted  to  the  court  was*  whether  the  de- 
vises and  bequests  in  the  will  operate  as  a  bar  to  the  complain- 
ant's demand. 

Frelinghu'ffsen,  for  defendants,  cited  6  Ves.  369 ;  3  P.  TF. 
353  ;  4  Ves.  464;  3  Ves.  535  ;  2  Vemon,  484;  2  Aik.  521-2; 
3  Aik.  67,  97-8 ;  2  Brown's  Chan.  352,  530 ;  Preston  on  Le- 
gacies^ 342-7 ;  4  Madd.  420. 

P.  Dicker  son,  for  complainants,  cited  2  P.  W.  55  3 ;  IP.  TF. 
410 ;  1  Esp.  Rep.  187-8 ;  1  P.  IF.  300 ;  1  Afk.  428 ;  6  Ves. 
238 ;  3  Aik.  96,  98 ;  2  Aik.  300 ;  4  Ves.  383 ;  3  Aik.  65 ;  2  Ves. 
sen.  636 ;  2  Salic.  508 ;  1  Dess.  314;  3  Ves.  jr.  466. 

THE  CHANCELLOR.  Abraham  P.  Yan  Riper  died  in  the  year 
'  1822,  intestate,  leaving  considerable  personal  estate,  and  more 
than  sufficient  for  tho  payment  of  his  debts ;  and  leaving  also  the 
complainants,  his  next  of  kin,  entitled  to  the  same.  Philip  Yan 
Riper,  the  father  of  Abraham  P.  Yan  Riper,  and  James  I.  Post, 
took  out  letters  of  administration  upon  the  estate  of  Abraham  P. 
Yan  Riper,  made  and  filed  an  inventory  and  appraisement  there- 
of, and  otherwise  took  the  charge  and  settlement  of  the  same ; 
but  both  died  without  rendering  any  account,  or  finally  settling 
up  the  business.  The  bill  charges,  that  Philip  Yan  Riper  was 
the  active  man  in  the  management  of  the  business,  and  collected 
considerable  sums  of  money,  which  ho  never  paid  over  to  the 
complainants.  Philip  Yan  Riper  died  in  the  year  1834,  leaving 
a  Last  will  and  testament,  and  therein  appointed  the  defendants 
executors  thereof ;  who  proved  the  said  will,  and  took  upon 
themselves  the  execution  thereof.  Tho  bill  seeks  an  account  ] 
of  the  defendants  as  such  cxpcutors,  of  the  estate  of  Abraham  P.  i 


JANUARY  TERM,  1838. 


Van  Ivipers  v.  Vau  lliper's  Executors. 


Van  Riper  in  the  hands  of  their  testator,  and  prays  a  decree  for 
the  payment  to  the  complainants  of  the  clear  residue  of  the  estate 
of  their  father,  Abraham  P.  Van  Riper,  as  upon  such  account 
shall  appear  to  be  due  to  them.  The  defendants  have  answered* 
admitting  these  facts ;  but  insist,  that  by  the  will  of  Philip  Van 
Riper,  he  devised  to  the  complainants  certain  lands,  and  also  be- 
queathed to  each  of  them  a  legacy  of  five  hundred  dollars.  That 
these  legacies  greatly  exceed  the  amount  due  the  complainants 
from  Philip  Van  Riper,  as  the  administrator  of  their  father ;  and 
that,  by  the  said  will,  the  complainants  are  made  residuary  le- 
gatees, each,  of  one  equal  fi  fth  part  of  the  testator's  estate.  It 
is  insisted,  that  these  several  devises  and  bequests  to  the  com- 
plainants, and  particularly  the  legacy  of  five  hundred  dollars  to 
each  of  them,  are  in  satisfaction  of  the  complainants'  demand  in 
this  cause ;  and  I  am  desired  by  counsel  to  decide  this  question 
alone. 

The  general  principle  is  well  settled,  that  a  legacy  will  be 
presumed  to  be  a  satisfaction  of  a  demand  against  the  testator. 
This  is  the  rule  where  there  are  no  circumstances  in  the  case,  or 
ipon  the  face  of  the  will,  showing  a  different  intention.  The 
-ale  is  founded  on  the  presumption  that  such  was  the  intention 
of  the  testator.  For  the  general  rule,  I  refer  to  Preston  on  Le- 
qacics,  339,  342,  and  347 ;  6  Vesey,  321 ;  3  Peere  Williams, 
353 ;  2  Vemon,  484 ;  2  Atkyns,  521-2 ;  3  Atkyns,  68,  97. 

"While  the  general  rule  of  ademption  is  thus  well  settled,  and 
as  I  think  a  very  proper  and  just  one  in  many  cases,  it  is  very 
observable  that  courts  do  not  favor  it  much,  and  have  refused  to 
extend  it  any  further  than  to  the  simple  case  of  considering  it  as 
satisfaction  where  no  presumption  to  the  contrary  can  be  drawn 
from  the  face  of  the  will.  This  disinclination  to  the  rule  is  mani- 
fested in  what  is  said  by  the  court  in  the  cases  just  referred  to  in 
Peere  Williams  and  3  Atkyns.  They  seem  not  only  willing, 
but  desirious  of  laying  hold  of  any  circumstances  to  take  the  case 
out  of  the  general  rule.  The  lord  chancellor,  in  the  last  case 
cited,  nses  this  strong  language :  "  In  later  cases  the  court  have 
said  this  doctrine  has  been  carried  too  far,  for  legacies  naturally 


CASES  IN  CHAKGERT, 


Van  Ripers  v.  Van  Riper's  Executors. 


imply  a  bounty ;  and  therefore  though  the  court  of  late  have  not 
altogether  disavowed  this  doctrine  of  satisfaction,  yet  they  have 
been  very  inclinable  to  lay  hold  of  any  circumstances  to  distin- 
guish the  latter  from  former  cases." 

In  1  Aikyns,  428,  it  was  held  that  a  devise  of  land  could  not 
be  taken  in  satisfaction  for  money. 

In  1  Peere  Williams,  410,  which  is  a  strong  case  on  this 
subject,  the  lord  chancellor  took  the  case  out  of  the  general  rule, 
(which  was  fully  admitted),  on  the  ground  that  the  will  directed 
"all  the  testator's  debts  and  legacies  to  be  paid." 

In  1  Esp.  Cases,  188,  lord  Kenyon  ruled  that  a  legacy  was 
never  deemed  a  satisfaction  of  an  unliquidated  demand ;  and  in 
2  Atkyns,  300,  it  -was  held,  that  the  fact  of  the  legacy  being  con- 
tingent took  the  case  out  of  the  general  rule. 

While  I  admit  the  force  and  propriety  of  the  general  rule,  as  I 
have  stated  it,  and  of  the  exceptions  which  have  from  time  to 
time  been  taken,  in  looking  into  the  will  now  before  the  court  I 
have  no  hesitation  in  arriving  at  the  conclusion,  that  the  devises 
and  bequests  there  made  to  the  complainants,  were  never  intended 
by  the  testator  as  a  satisfaction  of  the  demand  made  in  this  ac- 
tion. 

In  the  first  place,  the  testator  in  express  words  directs  his  ex- 
ecutors to  pay  all  his  just  debts.  In  the  second  place,  in  the  de- 
vise to  the  complainants  of  the  lands,  the  will  directs  the  division 
to  be  made  between  thorn  when  Philip  should  arrive  at  age, 
when  he  was  to  take  possession  of  his  share ;  and  in  like  man- 
ner with  James,  when  he  should  arrive  at  age ;  and  in  the  mean 
time  the  executors  to  receive  the  rents,  and  out  of  his  estate 
generally  to  give  them  a  good  common  education  and  trades. 
The  five  hundred  dollars  was  not  to  be  paid  to  them  till  they  se- 
verally arrived  at  age.  All  the  cases  agree,  that  a  present  debt 
can  never  be  satisfied  by  a  contingent  legacy.  Nor  can  there  bo 
any  reasonable  presumption  that  this  testator  ever  intended  to 
pay  a  demand  due  at  the  time,  by  legacies  to  be  payable  at  a  fu- 
ture day.  The  debt  may  also  be  considered  in  tin's  case  in  a 
measure  as  unliquidated ;  lie  had  never  settled  his  accounts  aa 


JANUARY  TERM,  1838. 


Van  Ripers  T.  Van  Riper's  Executors. 


administrator.  They  are  all  open  to  tliis  day,  and  it  seems  from 
the  answer  of  these  defendants,  that  they  have  considerable  diffi- 
culty in  ascertaining  how  much  the  balance  due  is.  This  case 
is  in  my  judgment  made  stronger,  from  the  fact,  that  the  debt 
due  by  the  testator  was  not  in  his  own  personal  right,  but  as  the 
representative  of  another  man's  estate.  From  all  these  circum- 
stances, it  would  be  going  too  far,  and  pressing  the  rule  beyond 
its  proper  limits,  to  consider  the  provisions  made  in  this  will  in 
the  light  of  a  satisfaction  to  the  complainants. 

I  shall  therefore  direct  a  reference  to  a  master,  to  state  an  ac- 
count, as  prayed  by  the  bill. 

CITED  in  Pdrie  v.  Voorhees  Ear.,  3  C.  E.  Or.  291, 


ASHBEL    ~W.    COEEY  V.  "WlLLIAM    T.   VoORflI£3    ttTld    CHASLE8 

F.   YOORHEES. 

It  is  requisite  that  the  party  obtaining  an  injuucti  m  uso  due  diligence  in  ex- 
pediting his  cause  ;  and  if  the  complaint  is  guilty  of  gross  neglect  in  pro- 
ceeding with  his  suit,  the  injunction  will  be  dissolved. 

It  is  no  ground  for  the  dissolution  of  an  injunction,  that  the  subpcena  could 
not  bo  eerved  ;  nor,  that  the  injunction  itself  was  served  illegally,  or  without 
the  jurisdiction  of  the  court. 

Upon  a  motion  t  >  dissolve  an  injunction  on  the  ground  that  tho  subpoena  h«H 
not  been  served,  the  sheriff's  return  to  the  subpcena  is  conclusive,  and  can- 
not, be  contradicted  by  affidavits,  u..less  collusion  be  shown  between  the 
sheriff  and  the  complainant  or  his  solicitor. 

Tuis  bill,  which  was  for  an  injunction,  was  filed  on  the  26th 
of  August,  1837,  and  contained  the  usual  prayer  for  a  subpoena. 
A  6ubpO2na  had  been  issued,  returnable  to  the  term  of  October, 
1837,  and  returned  by  the  sheriff  of  Essex,  that  the  defendants 
could  not  be  found  in  his  county  to  be  served  with  process,  with 
the  usual  affidavit  of  non-residence.  At  the  same  term  an  order 
of  publication  was  made.  An  injunction,  pursuant  to  the  prayer 
of  the  bill,  had  been  issued  and  served  upon  the  defendants  ia 
the  state  of  New- York. 


CASES  IN  CHANCERY, 


Coroy  v.  Yoorhies. 


It.  Van  Arsdale,  for  the  defendants,  now  moved  to  dissolve  the 
injunction,  .and  in  support  of  his  motion  read  the  affidavits  of  the 
defendants.  He  also  cited  1  Grant's  Ch.  Prac.  70,  329 ;  1  Ed- 
ward? a  Rep.  631 ;  1  Price's  Rep.  92 ;  3  Brown's  Chan.  Rep. 
470;  18  Vcsey,  jr.  471;  Hoisted? 8  Dig.  178;  1  Vcs.  and  B. 
419 ;  4  Paige,  439,  425. 

The  grounds  of  the  application  sufficiently  appcarin  the  opin- 
ion of  the  chancellor. 

A.  WJiiteJiead,  contra. 

THE  CHANCELLOK.  H.  Van  Arsdale,  in  behalf  of  the  de- 
fendants, moved  to  dissolve  the  injunction  issued  in  this  cause, 
on  three  grounds : — 1.  Because  the  defendants  had  never  been 
served  with  a  subpoena :  2.  Because  the  injunction  was  served 
out  of  this  state  and  in  the  state  of  New- York ;  and  3.  Because 
the  original  injunction  was  not  shown  to  the  party  at  the  time  of 
the  service. 

As  to  the  first  ground : — According  to  the  English  practice,  a 
subpoena  is  required  in  many  cases  to  be  served  before  the  appli- 
cation for  an  injunction  can  bo  made,  and  in  fact  will  not  then 
be  allowed  until  answer  or  default  in  the  party  in  not  appearing. 
In  all  such  cases,  it  becomes  very  imporsant  to  know  that  tho 
subpcena  has  been  issued  and  served.  Under  our  practice  injunc- 
tions are  issued  on  filing  tho  bill,  and  before  issuing  a  subpoena 
or  waiting  for  an  answer.  Tho  only  requirement  which  the 
court  can  make  on  the  party  obtaining  the  injunction,  is,  that  ho 
"use  due  diligence  in  expediting  his  cause.  Nothing  could  work 
greater  injustice,  than  to  allow  a  party  to  obtain  an  injunction, 
and  then  let  his  cause  sleep.  It  was  accordingly  decided  bj 
chancellor  "Williamson,  at  April  term,  1829,  (see  a  reference  to 
this  case  in  IlalstecFa  Digest,  ]  78),  that  a  party  must  take  out 
a  subpcina  on  taking  out  an  injunction,  and  that  ho  would  dis- 
solve an  injunction  if  that  practice  was  not  adopted.  The  same 
rule  would  apply  to  any  other  case  of  gross  rtcgjoct  on  tho  port 
of  the  complainant  to  progress  in  his  suit. 


JANUARY  TERM,  1838. 


Corey  v.  Yoorhies. 


In  the  present  case,  it  is  agreed  by  counsel  on  the  argument, 
that  the  bill  was  filed  on  the  26th  day  of  August,  a  subpoena 
taken  out  returnable  to  the  next  stated  term  of  the  court,  and 
returned  by  the  sheriff  of  the  county  of  Essex  that  the  defen- 
dants could  not  be  found  in  his  county  to  be  served  with  process, 
with  his  affidavit  in  the  usual  form  of  their  being  absent  defen- 
dants residing  in  the  state  of  iNe"  w-York ;  and  that  an  order  of 
publication  was  made  at  the  term  to  which  the  subpoena  was  re- 
turned. What  could  the  complainant  have  done  more  ? 

The  defendants  have  severally  made  affidavit  that  they  have 
not  been  served  with  a  subpoena ;  and  one  of  them,  that  since 
filing  the  bill  he  has  repeatedly  been  in  the  county  of  Essex. 
These  affidavits  do  not  vary  the  case.  The  return  of  the  sheriff 
should  be  conclusive  for  the  present  purpose,  unless  some  collusion 
is  shown  to  exist  between  the  sheriff  and  the  complainant  or  hia 
solicitor,  which  is  not  pretended.  Besides,  all  that  the  defendants 
swear  to  may  be  perfectly  true,  and  the  sheriff  never  have  seen 
the  defendants  in  his  county  or  been  able  to  make  personal  ser- 
vice on  them  or  either  of  them.  I  cannot,  therefore,  as  the  com- 
plainant seems  to  have  done  all  in  his  power  to  progress  with  his 
suit,  according  to  the  practice  of  the  court,  sustain  the  motion 
on  the  ground  that  the  subpcena  was  not  served. 

As  to  the  second  and  third  reasons,  they  cannot  lay  the  foun- 
dation for  dissolving  an  injunction.  If  the  in  'unction  has  been 
served  out  of  the  jurisdiction  of  the  court,  and  in  a  manner  not 
conformable  to  the  settled  practice,  that  may  all  be  very  proper  to 
urge  on  a  motion  for  an  attachment  fora  contempt  in  case  of 
disobedience  to  its  requirements,  but  cannot  be  a  reason  for  set- 
ting aside  the  injunction  and  order.  There  are  cases  where  the 
party  will  be  considered  in  contempt  when  the  injunction  was 
r.ot  regularly  served,  provided  they  were  present  in  court  at  tho 
time  it  was  ordered,  or  had  other  certain  knowledge  that  the 
same  had  been  ordered.  The  motion  therefore  must  bo  denied. 

CITED  In  West  v.  Smith,  1  Gr.  CTi.310;  Lroicnv.  Fulla;  2  Lear,  274;  Iloag 
land  c.  Tdus,  1  Me  Cart,  82. 


TFTTC  PREROGATIVE  COURT, 

JANUARY    TERM,    1838. 


WILLIAM  PE1TNINGTOW,  Esq.,  ORDINARY. 


JOSEPH  Y.  WHITENACK  and  HENKT  "WnrrENACK   v.   URIAS' 
STKYKEB  and  JOHN  H.  YOORHIES. 

The  preTimption  of  law  is  in  favor  of  testamentary  capacity,  and  ho  who 
insists  on  the  contrary  has  tho  burden  of  proof,  except  where  insanity  in 
the  testator  has  been  shown  to  exist  at  a  time  previoits  to  the  execution  of 
the  will ;  in  that  case  the  onus  is  shifted,  and  the  party  offering  the  will  is 
bound  to  show  that  it  was  executed  at  a  lucid  interval. 

The  time  of  the  execution  of  the  will  is  the  material  period  to  which  the  court 
must  look  o  ascertain  the  state  of  mind  of  the  testator  ;  and  although  it  is 
competent  evidence  to  show  the  stite  oi  tho  testator's  mind  at  any  tims  pre- 
vious or  subsequent  to  tho  execution  of  the  will,  yet  such  proof  is  always 
liable  to  be  overcome  by  natisfictor/  evidence  that  Ihe  testator,  at  the  time 
he  executed  the  writing,  had  the  possession  of  his  faculties. 

The  testamentary  witnesses,  their  opinions,  and  the  facts  they  state  as  occur- 
ring at  the  time  of  the  execution  of  tho  writing,  are  to  be  particularly  re- 
garded by  the  court. 

The  opinions  of  witnepges  other  than  the  testamentary,  as  to  tho  capacity  of 
the  testator,  are  to  be  received  as  tho  slightest  kind  of  evidence,  except  BD 
far  a*  those  opinions  are  based  on  facts  and  occurrences  which  are  detailed 
before  the  court. 

Witnesses  nre  to  state  tho  fact .;  and  it  is  the  business  of  the  court,  from  those 
facts,  to  pronounce  the  opinion,  upon  settled  rules  and  guides,  whether  the 
testator  is  competent  or  not. 


\  JANUARY  TERM,  1838.  0 

Whitenack  v.  Slryker  anil  Voorhies. 

Old  age,  failure  of  memory,  and  oven  drunkenness,  do  not  of  themselves 
necessarily  take  aw.iy  a  testator's  capacity.  Ho  may  be  ever  so  aged,  ve  y 
infirm  in  body,  and  in  habits  of  intemperance,  uiid  yet  in  the  eye  of  tlie 
law  possess  that  sound  mind  necessary  to  a  disposition  of  his  estate. 

It  is  not  indispensable  that  the  party  offering  a  will  or  codicil  for  ^robato  pro- 
duce all  the  witnesses,  provided  those  produced  prove  its  duj  and  legal  exe- 
cution. . 

The  witnesses  must  attest  tho  will  at  the  request  of  the  testator,  but  it  is  not 
necessary  that  the  testator  should  openly  make  the  r  quest.  His  acquies- 
cence when  the  witnesses  ore  called  in  for  that  purpose  by  anotuer,  is  suffi- 
cient. 

Upon  a  question  of  capacity,  au  inquisition  of  lunacy  is  competent  but  not 
conclusive  evidence. 

In  cases  of  doubt,  requiring  full  investigation,  costs  before  tho  orphan's  court 
and  also  the  costs  of  appeal,  with  reasor  able  couusel  fees  on  tho  hearing , 

will  be  directed  to  ba  paid  oat  of  tb.3  testator's  estate. 

i 

i 

THIS  case  came  before  the  court  upon  an  appeal  from  the 
decree  of  the  orphan's  court  of  the  county  of  Somerset.  On  tho 
death  of  Abraham  Whitenack,  of  said  county,  three  writings 
were  presented  to  the  surrogate  for  probate ;  one  purporting  to  be 
the  last  will  and  testament  of  Abraham  "Whitenack,  bearing  date 
the  23d  day  of  March,  1830 ;  one  purporting  to  be  a  codicil  to 
that  will,  bearing  date  the  31st  day  of  August,  1833 ;  and  another, 
purporting  to  be  a  second  or  further  codicil,  bearing  date  the  llth 
day  of  August,  1835.  A  caveat  against  the  probate  of  any  of 
the  said  paper  writings,  was  filed  by  Unas  Strykcr  and  John  II. 
Voorhies,  sons-in-law  of  the  testator,  and  the  respondents  in  this 
court.  Many  witnesses  were  examined  before  the  orphan's  court, 
counsel  were  heard,  and  at  January  term,  1837,  a  decree  of 
that  court  was  made,  admitting  the  paper  writing  purporting  to 
be  the  last  will  and  testament  to  probate,  and  rejecting  both  the 
codicils.  The  orphan's  court  further  directed  the  costs  to  be  paid 
out  of  the  testator's  estate.  The  decision  of  the  orphan's  court  £s 
to  the  will  was  acquiesced  in,  but  an  appeal  was  taken  from  that 
decision  so  far  as  it  relates  to  the  two  codicils.  The  question 
came  before  this  court  upon  the  validity  of  the  first  and  second 
codicils. 


10  PREROGATIVE  COURT, 

Whitenack  v.  Stryker  and  Voorhies. 

Frelinghuysen,  for  appellants. 

In  investigating  the  question  of  testamentary  capacity,  the 
time  of  executing  the  will  is  principally  to  be  regarded,  and  tho 
testamentary  witnesses  are  the  most  important.  4  Wash.  C.  C.  R. 
262,  268;  11  Ves.  jr.  11;  19  7foW,494;  5  Cond.  Ecdes.Rep. 
411 ;  1  Ibid,  47;  2  Hid,  371 ;  3  StarJs.  Ev.  1707,  n.  2. 

The  presumption  of  law  13  in  favor  of  capacity,  and  against 
fraud.  4  Wash.  C.  C.  R.  2G9;  1  Swmb.  122:  1  Ibid,  132, 
sec.  5,  C. 

Old  age,  of  itself,  will  not  render  a  testator  incompetent ;  nor 
drunkenness,  unless  he  be  at  the  time  under  its  immediate  influ- 
ence. 3  Stark.  Ev.  1703,  n.  1 ;  5  John.  Oh.  Rep.  153. 

Failure  of  memory  is  no  ground  of  objection  to  a  testator's  ca- 
pacity, unless  it  extend  to  a  knowledge  of  his  family  and  friends. 
It  is  enough  that  the  testator  understands  the  business  in  which 
lie  is  engaged.  3  Stark.  Eo.  1705,  n.  1 ;  8  Mass.  371 ;  3  Serg. 
andR.  267;  2  Phill.  Ev.  191;  Swinb.  187,  164,  sec.  10  and 
11;  2  Southard,  675;  4  Wash.  C.  C.  R.  267. 

A  man  may  by  fair  argument  or  persuasion  induce  another  to 
make  a  will  in  his  favor.  3  Stark  Eo.  1707,  n.  1. 

The  influence  to  impair  a  will  must  be  coercivo  and  forcible. 
8  Cond.  Eccles.  Rep.  254;  1  Hid,  336;  2  Law  Library,  200, 
202,  Wyatfscase. 

The  inquisition  of  lunacy  against  the  testator  is  not  conclusive 
cs  to  lib  capacity  to  make  a  will.  Higlimorc  on  Luna'jy,  34} 
3  Stark.  1702,  n.  1, 1707. 

The  mere  opinions  of  witnesses,  other  than  tho  testamentary 
witnesses,  are  not  to  bo  regarded.  3  Stark.  1707,  n.  2. 

TT.  Thomson  and  Ilartwell,  for  respondents,  contra. 

They  cited  Rev.  Laws,  221,  sec.  3;  Hid,  7,  sec.~2;  2  Law 
Library,  203,  (She1  ford  on  Lunatics;}  Ibid,  4,  180;  Phill. 
Wo.  434;  2  Bl.  Com.  282,  in  notes;  2  Law  Library,  162,  9; 
C  John.  Ch.  375 ;  2  Law  Library,  70,  41 ;  3  Mass.  371 ; 
Be&a  Hcd.  Jur.  300-7,  3oO 


TERM,  1838.  11 


Wbitenack  v.  Strvker  and  Voorhies. 


They  insisted  that  the  inquisition  must  be  overcome  by  proof. 
5  Hals.  217. 

That  all  the  attesting  witnesses  must  bo  examined,  and  it 
must  appear  that  they  subscribed  as  witnesses,  at  the  request  of 
the  testator.  2  Chitty's  Bloc.  302-3 ;  3  Stark.  Ev.  1692. 

NoWMt)  in  reply. 

THE  ORDINARY.  The  principles  of  kw  applicable  to  cases 
of  this  character  have  become  well  settled,  and  it  is  very  impor- 
tant to  adhere  to  those  rules  which  long  experience  has  fully 
tested  to  be  wise,  in  considering  so  important  a  question  as  that 
of  the  capacity  of  a  testator.  The  following  general  rules  and 
principles  (and  which  are  all  that  are-  necessary  to  be  ascertained 
for  the  purposes  of  tliis  cause)  may,  I  think,  be  considered  as 
well  settled.  In  fact,  upon  the  hearing  there  seemed  to  bo  no 
difference  among  the  counsel  as  to  the  general  principles  of  lavr, 
but  the  case  turned  mainly  on  the  evidence.  The  first  principle 
is,  that  the  presumption  of  law  is  in  favor  of  capacity,  and  that 
he  who  insists  on  the  contrary  has  the  burden  of  proof,  except 
where  insanity  in  the  testator  has  been  shown  to  exist  at  a  time 
previous  to  the  execution  of  the  will ;  in  that  case  the  onus  is 
shifted,  and  the  party  offering  the  will  is  bound  to  show  that  it 
was  executed  at  a  lucid  interval.  2.  That  the  time  of  the  exe- 
cution of  the  will  is  the  material  period  to  which  the  court  must 
look,  to  ascertain  the  state  of  mind  of  the  testator ;  that  although 
it  is  competent  evidence  to  show  the  testator's  mind  at  anytime 
previous  or  subsequent  to  the  execution  of  the  will,  yet  such 
proof  is  always  liable  to  be  overcome  if  it  be  satisfactorily  shown 
that  the  testator,  at  the  time  ho  executed  the  writing,  had  the 
possession  of  his  faculties.  3.  That  of  all  the  witnesses  the  tes- 
tamentary witnesses,  and  their  opinions,  and  the  facts  they  state 
as  occurring  at  the  time,  are  to  be  particularly  regarded  by  the 
court.  They  are  placed  around  the  testator  for  the  very  purpose 
of  attesting,  after  his  death,  to  the  circumstances  under  which 
BO  solemn  an  instrument  is  executed.  4.  That  the  opinions  of 


12  PREROGATIVE  COURT, 


Whitenack  v.  S  rvker  aud  Voorhies. 


witnesses  other  than  the  testamentary  witnesses,  as  to  the  capacity 
of  the  testator,  are  to  be  received  as  the  slightest  kind  of  evi- 
dence, except  so  far  as  those  opinions  are  based  on  facts  and  oc- 
currences which  are  detailed  before  the  court.  It  is  most  evident, 
that  if  the  mere  opinion  of  a  witness  as  to  the  testator's  capacity 
was  to  prevail,  it  would  become  necessary  for  the  court  to  become 
acquainted  with  the  witnesses  themselves ;  for  while  the  view 
of  such  a  question  which  a  man  of  strong  clear  mind  and  know- 
ledge might  take,  would  be  very  important,  that  of  another  of  a 
different  character  would  have  very  little  weight.  Besides,  it 
will  be  found  that  eveiy  witness  has  a  standard  of  capacity  of 
his  own,  and  he  judges  all  cases  by  that  rule.  "Witnesses  are  to 
State  the  facts,  and  it  is  the  business  of  the  court  from  those  facts 
to  pronounce  the  opinion,  upon  settled  rules  and  guides,  whether 
the  testator  is  competent  or  not.  And  5.  That  old  age,  failure  of 
memory,  and  even  drunkenness,  do  not  of  themselves  necessa- 
rily take  away  a  testator's  capacity.  He  may  be  ever  so  aged, 
very  infirm  in  body,  and  in  habits  of  intemperance,  and  yet  in 
the  eye  of  the  law  possess  that  sound  mind  necessary  to  a  dispo- 
sition of  his  estate. 

These  principles  will  be  found  to  be  fully  supported,  and  moro 
at  large,  in  the  following  cases : — 4  Washington  dr.  Ct.  J2e- 
pwte,  262, 9  ;  11  Vesey,  11 ;  5  Cond.  Ecdes.  Rep.  411 ;  1  IUdy 
47 ;  2  Ibid,  371 ;  1  Swinb.  122 ;  5  John.  Ch.  158-9 ;  2  Phil- 
lips on  Evidence,  191 ;  8  Mass.  371. 

Holding  myself  bound  by  these  rules,  and  which  must  ap- 
prove themselves  to  the  judgment  of  every  man,  I  come  to 
consider  the  main  question  in  the  cause :  "Was  the  testator,  at  the 
time  lie  executed  the  two  codicils  in  question,  of  sound  and  dis- 
posing mind  and  memory  ? 

The  iirst  witness  whose  evidence  I  shall  consider,  is  Nicholas 
Williamson.  He  is  a  witness  to  both  the  codicils,  and  a  neighbor 
of  the  testator.  He  says  the  testator  executed  the  first  and  second 
codicils  in  his  presence,  and  in  the  presence  of  the  other  subscri- 
bing witnesses;  that  he  frequently  called  to  sec  the  testator  as  a 
neighbor,  and  never  perceived  his  mind  failed  him.  He  cannot 


JANUARY  TERM,  1838.  13 

Whitenack  v.  Stryker  and  Voorhies. 

say  whether  ho  was  sent  for,  or  came  in  accidently  at  the  time 
of  executing  the  first  codicil.  The  testator  informed  him  that  he 
had  been  to  Somerville  and  consulted  governor  Yroom  about 
making  a  codicil  to  his  will,  and  not  having  the  will  with  him, 
the  governor  told  him  that  he  would  write  a  codicil  and  send  him. 
lie  handed  to  witness  the  copy  of  the  codicil  which  the  governor 
had  drawn,  and  requested  him  to  draw  one  according  to  that 
form,  which  he  did  at  once,  and  having  first  read  it  to  the  testator 
asked  him  if  it  was  right,  and  he  said  it  was.  He  said  the 
governor  told  him  if  there  was  room  enough  on  the  will,  he 
might  write  the  codicil  on  it,  if  not  it  might  be  written  on  a  sep- 
arate paper  and  annexed  to  it.  The  testator  explained  to  him  his 
redfcons  for  making  this  first  codicil.  One  of  his  executors  was 
dead,  and  another  he  wished  changed.  He  wanted  Henry 
JWhitenack  in  the  place  of  judge  Stryker.  He  said  judge  Stryker 
had  not  used  him  well ;  that  he  had  requested  the  judge  to  do 
some  business  for  him  which  he  had  not  done,  and  further  that 
he  had  not  paid  that  respect  to  him  which  he  thought  was  due 
him.  Tho  witness  says  ho  had  considerable  conversation  with 
testator  on  that  occasion ;  he  seemed  impressed  that  if  judge  Stry- 
ker was  continued  executor,  things  would  not  work  well  with  his 
estate.  They  talked  about  the  revolutionary  war.  Testator  told 
him  that  when  the  enemy  were  at  Brunswick  he  acted  as  pilot 
to  scouting  parties ;  that  the  enemy  found  it  out,  and  he  dare  not 
stay  at  home  at  night.  lie  says  he  expressed  himself  rationally. 
"Witness  says  testator  was  as  sane  as  when  they  were  young  men 
together.  He  appeared  to  understand  perfectly  the  situation  and 
circumstances  of  his  family,  and  the  disposition  of  his  property. 
Testator  wrote  his  own  name  to  the  first  codicil,  and  pub- 
lished and  declared  the  same  as  his 'codicil.  Witness  tliinks  Mr. 
Baird  came  for  him  when  second  codicil  was  executed.  That 
testator,  about  a  week  before,  had  told  witness  he  meant  to  alter 
his  will  as  it  is  altered  in  the  second  codicil ;  that  lie  meant  to 
have  it  done  by  a  lawyer,  as  it  was  important  to  his  family.  Ho 
then  stated  his  reasons  ;  that  he  had  an  estate  lie  had  worked 
hard  for,  and  he  could  not  bear  to  sec  it  squandered  in  the  way 


14      •  PREROGATIVE  COURT, 

Whitonack  v.  Stryker  and  Voorhies. 

he  saw  it  was  going  by  his  sons-in-law.  That  the  way  they 
were  going  on,  they  would  spend  all  in  a  short  time.  He  wished 
his  daughters  to  have  a  living,  and  his  estate  to  go  to  his  grand- 
children in  remembrance  of  what  he  had  done.  He  dwelt  on 
the  idea  that  his  sons-in-law  wanted  to  make  him  out  an  idiot. 
Testator  evinced  no  want  of  understanding.  Said^e  had  been 
advised  to  cut  off  his  sons-in-law,  but  he  would  not.  They  were 
all  his  children.  The  sons-in-law  had  used  him  ill,  but  he  want- 
ed to  distribute  his  property  equally  among  his  children.  At  the 
time  of  executing  the  second  codicil,  witness  says  testator  repeat- 
ed the  same  things.  At  the  execution  of  the  second  codicil,  it 
was  read  to  testator  by  the  witness,  and  he  was  asked  if  it  was 
as  he  wanted,  and  he  said  it  was.  Testator  then  signed.  At 
that  time  witness  says  testator  had  his  reason  as  well  as  ever,  or 
he  should  never  have  witnessed  the  codicil.  There  was  conside- 
rable conversation.  Witness  knew  testator  near  fifty  years,  and 
lived  within  a  mile  of  him  for  thirty  years  immediately  preceding 
his  death.  He  went  to  see  him  often ;  for  the  last  eight  or  ten 
years,  every  three  or  four  months.  Testator  was  poor  in  bodily 
health  for  the  last  years  of  his  life ;  was  subject  to  the  asthma. 
He  was  close  in  money  matters.  Witness  drew  leases  of  lands 
for  testator  every  winter  down  to  the  one  preceding  his  death. 
He  dictated  the  terms  very  accurately ;  he  did  so  to  the  last.  He 
was  a  man  who  could  see  a  great  many  faults  in  others.  The 
witness  took  charge  of  the  will  and  codicils  at  request  of  testator. 
He  said  he  lived  among  strangers.  Witness  always  considered 
testator  as  competent  to  transact  his  worldly  business. 

The  next  witness  is  Albert  Saums  ;  who  states,  that  he  saw 
testator  execute  the  first  codicil ;  that  it  was  done  in  his  presence, 
and  in  that  of  the  other  subscribing  witnesses,  and  at  the  timo  it 
purports  to  have  been  executed.  The  three  witnesses  were  pre- 
sent at  the  time.  He  was  asked  by  Mr.  Williamson  (the  last 
vitness)  to  witness  the  will.  The  testator  said  that  one  of  his  exe- 
cutors would  not  do  business^ or  him  when  bo  was  alive.  Witness 
vas  there  about  half  an  hour.  Testator  published  and  pronoun- 
ced the  writing  to  bo  his  codicil.  Witness  says  he  worked  on  the 


JANUARY  TEftH,  1838.  15 

Whitt-nuck  T.  Strykcr  and  Voorhu  8. 

la-m  where  testator  lived.  Testator  would  walk  round  and  talk 
wiLli  him  often.  The  first  codicil  was  executed  the  first  season 
witness  worked  there.  Testator  talked  about  ordinary  matters, 
a  id  appeared  to  have  his  reason.  Mr.  Williamson  read  codicil 
to  testator.  Witness  would  have  been  willing  to  transact  any 
business  with  testator.  On  one  occasion  he  set  witness  right  in 
regard  to  placing  a  beam  in  the  cider  house,  and  gave  his  reasons 
for  it.  Witness  worked  there  two  seasons,  and  the  first  codicil 
was  made  about  a  week  after  he  first  came  there.  Testator  was 
careful  to  prevent  waste  on  the  place.  Testator  was  close  in  his 
dealings.  lie  has  known  him  twelve  or  fifteen  years.  Witness 
cannot  say  he  ever  thought  the  old  man's  mind  failed  him.  At 
the  time  of  executing  the  first  codicil  testator  was  as  well  as  usual, 
walking  about  the  room. 

These  are  the  only  witnesses  examined  to  the  first  codicil. 
They  are  both  agreed  in  their  testimony,  and  clear  as  to  capaci- 
ty. They  state  many  facts,  and  give  a  rational  account  of  tho 
manner  of  its  execution.  The  third  witness,  Carney  llynear- 
Bon,  was  not  produced  as  a  witness,  and  by  the  papers  no  reason 
is  assigned  for  his  not  being  produced,  though  something  was 
Slid  on  that  subject  by  counsel  on  tho  argument. .  It  was  insist- 
ed by  the  caveators  that  this  codicil  could  not  be  proved  without 
the  production  of  all  the  witnesses.  I  cannot  think  it  indispen- 
sable to  produce  all  the  witnesses,  provided  those  produced  make 
out  a  due  and  legal  execution  of  the  will.  It  would  certainly 
have  been  open  to  the  caveators  to  have  produced  him,  could 
they  have  varied  the  case  by  so  doing.  It  was  also  contended, 
that  the  witnesses  must  attest  tho  will  at  tho  request  of  the  testa- 
tor. This  is  certainly  time  ;  but  it  is  not  necessary  to  make  out 
that  request,  that  the  testator  should  openly  make  the  request. 
If  it  be  done  by  his  cheerful  acquiesencc  when  tho  witnesses  arc 
called  in  for  that  purpose,  as  in  this  case,  by  the  friend  of  tho 
testator,  who  had  first  completed  the  writing,  and  was  himself  a 
witness,  it  is  sufficient. 

John  Atkinson  is  a  witness  with  Nicholas  Williamson  (\vho?e 
evidence  has  already  been  considered)  to  the  second  codicil.  Ho 


16  PREROGATIVE  COURT, 

Whitenaek  v.  Stryker  and  Vocrbies. 

states  that  it  was  executed  in  his  presence,  and  that  of  the  othci 
subscribing  witnesses,  at  the  time  it  bears  date.  Joseph,  the  tes- 
tator's son,  came  for  him.  Testator  was  laboring  at  tho  timo 
under  a  fit  of  the  asthma.  Mr.  "Williamson  read  paper  to  testa- 
tor. "Witness  lived,  for  twenty  last  years,  within  a  quarter  of  a 
mile  of  testator,  and  has  known  him  thirty-five  years.  Has 
been  in  the  habit  of  seeing  and  talking  with  him  often.  Testa- 
tor, at  the  tune  this  codicil  was  executed,  was  asked  if  lie  want- 
ed to  hear  the  original  will  read ;  he  said  yes,  and  it  was  road 
to  him.  When  the  codicil  was  read  to  him,  Mr.  "Williamson  ask- 
ed him  if  it  was  all  correct  as  he  wished  it,  and  he  said  it  was. 
Before  witness  attested  the  paper,  he  asked  testator  his  reason 
for  making  the  change.  He  said  his  sons-in-law  were  spending 
his  property,  and  he  wished  his  daughters  and  grand-children  to 
have  some  benefit  from  it.  "Witness  talked  no  further  at  that 
time  with  testator,  1^ut  he  appeared  to  him  to  understand  what 
he  was  about.  There  was  a  codicil  presented  to  testator  a  few 
days  before,  but  he  refused  to  sign  it,  saying  it  was  not  right. 
This  was  the  one  brought  by  Mr.  Vroom.  Testator  always  ap- 
peared to  understand  his  affairs.  Witness  staid  with  testator 
sometimes  all  night.  Considered  him  capable  of  making  bar- 
gains, and  always  understood  his  own  interest. 

Cornelius  M'Colm.  This  is  the  third  witness  to  second  codi- 
cil. This  witness  sustains  the  other  witnesses  as  to  the  execu- 
tion of  this  codicil.  lie  was  called  there  by  Joseph,  but  Joseph 
did  not  remain  in  the  room  at  the  time  of  the  execution.  He 
was  there  about  half  an  hour.  Has  known  testator  thirty  years, 
having  lived  all  that  time  about  one  and  a  half  miles  from  him. 
Says  ho  has  been  afflicted  at  times,  as  long  as  he  has  known 
him,  with  the  asthma.  At  intervals  he  would  be  quite  smart. 
Witness  considers  testator,  at  the  time  of  executing  this  codi- 
cil, as  capable  of  making  a  will  and  disposing  of  his  property  as 
lie  ever  was.  The  witness  stated  a  number  of  families  Joseph 
must  have  passed  by  in  coming  for  the  witness,  living  between 
his  house  and  testator's. 

These  are  tho  subscribing  witnesses  to  the  second  codicil  with 


JANUARY  TERM,  1838.  17 

Whitenack  v.  Stryker  and  Voorbies. 

Nicholas  "Williamson.  They  all  agree  in  the  main  facts — in  the 
manner  of  the  execution,  and  in  the  capacity  of  the  testator. 
They  are  neighbors,  familiar  with  him  and  his  ways  of  thinking 
and  acting.  It  is  very  rare  that  you  will  find  witnesses  corrobo- 
rating each  other  more  fully  in  every  particular,  than  those  to 
these  two  codicils. 

In  further  support  of  the  two  codicils,  Benjamin  Young  is  pro- 
diiced  as  a  witness.  He  says  he  knew  the  testator  eleven  years ; 
saw  him  and  had  frequent  conversations  with  him  the  last  four 
years  of  his  life — sometimes  once  or  twice  a  week.  When  he 
talked  with  him,  lie  appeared  to  have  his  mind.  This  witness 
gives  a  particular  account  of  borrowing  money  of  testator,  and 
all  that  passed  in  July,  1835,  showing  a  complete  understanding 
in  him  of  the  whole  business,  and  of  the  different  standing  of 
banks.  He  speaks  of  his  son  renting  a  farm  of  testator,  and 
many  things  that  were  said  at  the  time,  and  the  conversation 
about  the  terms  that  took  place.  This  was  in  the  spring  of  1834.. 
That  testator  gave  directions  how  the  farm  should  be  worked. 
That  he  insisted  on  it  as  the  best  plan  in  making  fence,  to  have 
the  bark  on  the  rails.  He  relates  a  conversation  between  testator 
and  Urias  Stryker,  his  son-in-law,  in  which  they  disputed  about 
the  loan  of  money.  He  says  his  son-in-law,  on  that  occasion, 
called  the  testator,  for  not  letting  him  have  more  money,  a  liar,, 
and  a  damned  liar.  He  speaks  confidently  of  testator's  capacity,, 
and  says  he  never  discovered  that  testator's  mind  failed  him. . 
The  witness  states  that  the  conversation  took  place  about  the 
money,  whan  Urias  Stryker  abused  testator,  in  prescnca  of  John 
Huff,  John  Miner,  and  others,  in  the  evening,  at  the  testa-- 
tor's  house.  He  further  states,  that  ho  since  spoke  to  Mr.  Miner 
about  that  conversation,  and  he  remembered  it.  He  further 
states,  that  he  waa  at  testator's  funeral,  and  that  Mrs.  Yoorhies,. 
the  testator's  daughter,  made  an  attempt  to  burn  the  will,  and 
Urias  Striker  said,  burn  it  up ;  but  it  was  finally  rescued  by 
Mrs.  Henry  Whitenack. 

Nothing  could  be  more  confirmatory  of  the  testator's  capacity 
than  the  whole  of  this  witness's  testimony.     It  is  very  particu- 


18  PREROGATIVE  COURT, 

Whitenack  v.  .  tryker  and  Voorhies. 

Jar,  relates  to  a  great  many  circumstances,  and  such  as  go,  to 
show  a  full  understanding  in  the  testator  in  relation  to  business 
transactions.  But  his  testimony  is  impeached  by  the  caveators 
on  the  ground  that  Miner  and  Huff,  two  of  the  persons  stated  by 
him  to  have  been  present  at  the  time  that  Urias  Striker  is  said  to 
have  called  the  testator  a  liar,  deny  that  they  >were  present. 
They  certainly  do  deny  being  present  at  any  such  conversation, 
and  the  caveators  are  entitled  to  all  the  benefit  arising  from  this 
contradiction.  They  claim,  however,  that  his  whole  evidence 
should  be  disregarded,  because  in  this  particular  he  has  clearly 
stated  what  is  disproved.  I  cannot  think  this  would  be  just. 
While  it  certainly  does  take  from  that  reliance  which  you  would 
place  on  an  accurate  witness,  yet  it  is  not  an  impossible  thing 
that  the  most  honest  man  might  speak  truly  of  any  particular 
transaction,  and  yet  be  utterly  mistaken,  from  want  of  recollec- 
tion, as  to  the  persons  present  at  the  time.  If  a  witness  was 
corrupt,  it  is  hardly  to  be  supposed  he  would  expose  himself  by 
naming  persons  as  present  at  any  particular  transaction,  whon 
he  knew  they  were  at  hand  and  might  be  called  as  witnesses  to 
contradict  him.  James  "W.  Todd  is  also  called  to  state  from 
memory  some  discrepancies  in  the  evidence  of  this  witness  in  this 
cause  and  when  he  was  sworn  on  the  first  inquisition,  which  had 
taken  place  sometime  previously ;  yet  they  will  be  found  not  to 
IK)  on  very  material  points.  On  the  whole,  I  cannot  discard  this 
testimony,  but  am  disposed  to  receive  it  with  all  that  just  allow- 
ance which  the  contradictions  made  to  it  are  fairly  entitled  to. 

Samuel  B.  TJpdyke,  another  witness  in  support  of  the  will, 
speaks  of  being  present  at  the  loaning  of  fifteen  hundred  dollars 
by  the  testator,  in  which  he  spoke  of  the  security  he  must  have, 
preferring  personal  security  to  bonds  and  mortgages,  as  they  were 
taxed ;  but  as  this  witness  states  no  time  when  this  took  place, 
much  of  its  force  is  lost. 

Samuel  Saums,  another  witness,  says  he  has  known  the  tes- 

'  V 

tator  for  twenty  years,  and  has  lived  within  three-quarters  of  a 
mile  from  him.  He  occupied  testator's  distillery.  This  witness 
relates  some  conversations  of  ordinary  character  that  he  had  f .  om 


JANUARY  TERM,  1838.  19 

Whitennck  v.  Stryker  and  Voorhies. 

lime  to  time,  showing  mind  in  the  testator,  and  some  of  them 
in  the  year  1833.  He  fully  corroborates  the  evidence  of  Benja- 
min Young  as  to  what  took  place  at  the  testator's  funeral,  in  the 
attempt  to  burn  the  will,  by  Mrs.  Voorhies. 

Abraham  D.  Baird  testifies,  that  he  has  lived  within  a  mile  of 
testator  for  the  last  sixteen  years,  and  during  the  last  six  years  of 
his  life  had  frequent  conversations  with  him.  Says  testator  was 
a  singular  sort  of  man.  In  1832  he  paid  off  a  note  to  testator, 
who  counted  the  money  as  accurately  as  any  body.  Has  heard 
him  speak  of  his  family  with  tenderness.  He  considers  testator 
competant  to  make  a  will,  except  under  very  severe  spells  of  the 
astlima.  This  witness  also  speaks  of  the  occurrence  at  the  fune- 
ral, in  the  attempt  to  burn  the  wilL  He  was  present  at  the  time 
the  second  codicil  was  written,  and  said  it  was  not  right,  and  he 
.  would  not  have  it  put  to  his  wilL  He  said  he  meant  to  have  an 
additional  codicil,  and  gave  as  a  reason  that  if  his  sons-in-law 
spent  money  as  they  did  in  his  life-time,  what  would  they  do 
when  he  was  dead. 

William  Gray  testifies,  that  in  1835  he  lived  in  the  house 
with  testator,  and  had  conversations  with  testator,  though  not  a 
great  deal.  He  lived  there  eight  months,  and  saw  him  two  or 
three  times  a  day.  This  witness  never  considered  him  a  man 
without  his  reason. 

George  A.  Vroom  testifies,  that  he  saw  testator  four  or  five 
times  after  the  first  inquisition,  and  conversed  with  him  each 
time.  He  drew  the  second  codicil.  On  the  8th  of  August,  1835, 
he  went  to  testator's  and  got  his  instructions  for  drawing  it. 
When  he  came  in  he  asked  testator  if  he  knew  him.  He  said  he 
did  not.  When  he  mentioned  his  name,  he  asked  him  if  he  was 
a  nephew  of  old  colonel  Yroom.  Witness  said  he  was  his  grr.nd- 
son.  Testator  said  he  knew  colonel  Yroom  very  well.  He  then 
talked  about  altering  his  will.  Said  he  wished  to  fix  it  so  that 
lu's  grand-children  could  have  an  equal  share  of  their  mothers' 
property.  Testator  gave  him  instructions  for  drawing  the  codicil. 
Said  he  wished  his  property  out  of  the  hands  of  his  sons-in-law. 
Witness  asked  testator  if  he  had  any  money  out  at  Somervillc. 


20  PREROGAT1YE  COURT, 

Whitenack  v.  Stryker  and  Voorhies. 

He  said  yes,  with  Mr.  Mann.  "Witness  then  asked  him  if  -Mr. 
Gore  had  not  the  money.  He  said  yes,  and  Mann  was  the  sure- 
ty. He  talked  to  him  about  his  pension  money,  and  asked  if  ho 
should  like  to  have  some  of  it.  He  said  he  was  like  a  blind  man, 
he  would  rather  see  than  hear  tefi  of  it.  He  was  there  near  an 
hour,  and  talked  with  him  on  various  subjects.  '  The  next  day 
he  returned  with  the  codicil,  and  was  reading  it  to  him,  when 
testator  stopped  him,  and  said  it  was  not  according  to  his  direc- 
tion. "Witness  says  he  then  recollected  it  was  not  drawn  accord- 
ing to  his  direction.  He  took  it  away,  and  drew  it  over,  and  sent 
it  to  him.  "Witness  has  no  doubt  of  testator's  competency.  Jo- 
seph was  not  in  the  room :  he  came  for  him.  He  took  him  fifty 
dollars  in  gold,  which  he  requested  witness  to  keep  for  him. 

This  closes  the  testimony  in  support  of  the  codicils,  and  a 
stronger  case,  standing  by  itself,  I  confess  can  hardly  be  made. 
All  the  testamentary  witnesses  (five  in  number)  that  have  been 
examined,  concurring  in  testator's  capacity  at  the  time,  sustained 
by  so  many  others  who  were  his  neighbors,  and  relating  facts 
showing  a  rational  mind,  and  those  witnesses  unimpeached  ex- 
cept as  to  Benjamin  Young. 

I  now  proceed  to  examine  the  evidence  in  opposition  to  the 
codicils.  There  has  been  a  mass  of  evidence  taken,  of  which  I 
shall  feel  bound  to  notice  here  only  so  much  as  bears  on  the  ques- 
tion of  capacity.  • 

The  first  witness  is  James  D.  Stryker.  This  gentleman  drew 
the  original  will  in  1830,  and  was  named  one  of  the  executors. 
He  is  very  clear  as  to  testator's  capacity  at  that  time.  He  uses 
this  strong  language : — "  I  don't  think  that  I  entertained  the 
least  doubt  of  his  testamentary  capacity  at  the  time  the  will  was 
executed."  He  says  he  complained  much  about  his  children, 
which  was  a  habit  with  him.  The  testator's  difficulty  scorned  to 
be  to  reconcile  matters  between  his  two  sons.  Sometime  after 
writing  the  will,  the  witness  went  to  take  testator's  examination 
upon  an  application  for  a  pension.  Then  his  memory,  he  says, 
appeared  to  be  entirely  gone.  He  complained  of  his  want  of 
memory.  He  thinks  then  he  was  not  capable  of  doing  business 


JANUARY  TERM,  1838.  21 ' 

Whitenack  v.  Strykcr  a  d  Voorbi  s. 

from  want  of  mind  and  memory  together.  This  was  in  1832. 
lie  could  not  recollect  the  name  of  any  officer  under  whom  he 
served.  On  further  examination,  witness  says,  testator  did  not 
show  any  incapacity  except  what  arose  from  want  of  memo- 
ry. Abraham  went  for  witness  to  write  the  will. 

It  is  most  manifest,  that  this  witness  places  himself  mainly  on 
want  of  memory  in  the  testator ;  for  by  the  very  conversation  he 
had  with  him,  his  complaining  of  his  want  of  memory,  all  prove 
he  had  reason  and  understanding.  In  fact,  the  witness  expressly 
says,  the  incapacity  he  speaks  of  arose  from  want  of  memory. 
This  witness,  it  seems,  at  the  very  time  of  which  he  speaks, 
must  have  administered  the  oaths  to  him  on  his  application  for  a. 
pension.  lie  speaks  of  "  taking  his  examination."  Would  a 
witness  of  the  high  character  of  this  gentleman,  administer  101 
oath  to  a  man  not  understanding  the  subject  ?  I  have  too  high 
an  opinion  of  his  character  to  entertain  any  such  belief.  Besides, 
this  very  witness,  on  the  first  day  of  February,  1834,  writes  a 
letter  to  testator,  which  is  made  an  exliibit  in  this  cause,  treating 
him  as  a  man  of  understanding  and  capacity.  Would  he  write 
such  a  letter  to  one  without  his  reason  ?  I  think  not.  In  fact, 
the  witness  in  his  examination  says,  that  when  he  went  to1  testa- 
tor's to  transact  the  business  stated  in  that  letter,  the  testator  un- 
derstood well  enough  what  he  was  about. 

Mrs.  Catharine  Van  Arsdale.  This  lady  relates  many  strange 
occurrences  during  the  period  of  Abraham's  (testator's  son's)  sick- 
ness. That  he  would  get  up  in  the  night,  come  to  witness's  bed, 
sometimes  two  or  three  times  of  a  night,  and  say  the  millennium 
had  come.  That  the  devil  had  him  chained  to  the  floor  and  was 
heaping  hay  on  him.  That  the  world  was  on  fire.  Seemed  dis- 
tressed and  alarmed.  He  talked  about  witches.  That  Ann  (his 
daughter-in-law)  was  a  witch,  and  had  come  in  through  a  small 
place  in  the  window.  That  it  rained  fire  and  brimstone.  He 
said  there  was  a  dreadful  noise,  and  bid  her  listen :  she  did  so, ' 
and  there  was  no  noise.  She  further  states,  that  she  was  at  tes- 
tator's after  the  will  had  been  sent  for  from  judge  Stryker's.  Tes- 
tator told  her,  Joseph  had  sent  old  Nicholas  Williamson  to  judge 


22  PKEKOGATIVE  COURT, 

Whitenack  v.  Stryker  and  Voorhies. 

Stryker  for  the  will,  and  had  brought  Atkinson  along  with  him* 
Testator  frequently  spoke  about  dividing  his  property  equally 
among  his  children.  This  witness  considers  the  testator  as  fail- 
ing since  1823.  Says  he  would  tell  over  the  same  story  again. 
That  he  never  went  to  bed  in  twenty  years,  but  slept  out  of  bed 
owing  to  his  disease.  After  1823  thinks  him  unfit  to  do  busi- 
ness. She  says  he  had  understanding  enough  to-know  he  waa 
not  fit  to  do  business.  Sometimes  he  seemed  to  understand  his 
own  interest  and  duties,  and  then  appeared  deranged.  He  would 
say  every  thing  was  dying  off,  he  was  afraid  his  cattle  would  die 
off.  Testator  was  worried  about  Abraham's  sickness :  he  sat  by 
Lim  most  of  the  time :  was  company  for  him.  She  says  she 
would  not  call  her  uncle  (the  testator)  a  crazy  man;  she  would 
call  him  a  feeble  man.  Testator's  children  quarrelled  among 
themselves.  They  sometimes  had  rough  conversation  with  their 
father.  She  gives  it  as  her  opinion  that  testator  was  not  able  to 
make  a  will  since  1820. 

The  impression  is  very  clear  from  the  evidence  of  this  witness, 
that  at  times  the  testator's  mind  was  out  of  order,  wholly  unfit 
to  transact  business.  Nothing  could  more  fully  show  it,  than 
some  of  his  conduct  as  related  by  this  witness.  His  feeble  health, 
old  age,  the  dreadful  disease  with  which  he  was  afilicted,  and 
his  immediate  affliction  in  the  sickness  and  death  of  his  son 
Abraham,  with  whom  he  lived,  seemed  to  overpower  his  facul- 
ties, and  for  a  time,  it  is  most  manifest,  prostrated  liis  reason.  I 
cannot  think  this  is  shown  by  this  witness  to  have  been  any  thirg 
more  than  temporary.  It  is  quite  obvious,  that  the  opinions  of 
this  witness  are  quite  too  sanguine.  She  considers  testator  in- 
competent to  make  a  will,  or  do  any  business,  for  ten  years  be- 
fore the  will  of  1830,  and  yet  that  will  lias  been  sustained,  ac- 
quiesced in  by  all  parties,  and  upon  clear  testimony. 

Mary  Saums  speaks  of  testator  in  1834.  Sometimes  he  ap- 
peared more  rational  than  at  others.  Ho  said  it  was  no  use  for 
him  to  cat  any  more :  that  ho  should  not  live  above  a  day  or  two. 
lie  after  this  ate  very  heartily.  He  stated  as  a  reason  why  ho 
should  die,  that  he  was  very  dry. 


JAmTAKY  TEEM,  1838.  23 

Whitenack  v.  Stryker  and  Voorhies. 

The  whole  amount  of  this  evidence  would  go  to  prove  a  wan- 
dering mind  in  the  testator  at  times,  and  yet  again,  according  to 
the  whole  account,  he  would  talk  rationally.  He  spoke  sensibly 
of  the  death  of  Mr.  Yoorest — that  old  men,  if  they  took  to  drink 
were  soon  taken  off. 

Joseph  Whitenack  says,  Joseph  told  him  he  meant  to  get 
judge  Stryker  out  of  the  will.  Testator  is  represented  as  a  man 
in  the  habit  of  running  down  his  children,  and  complaning  of 
their  spending  money.  This  witness  is  unwilling,  clearly,  to 
say  whether  in  his  opinion  testator  was  competent  in  .1831, 1832 
and  1833,  to  transact  business.  He  says  it's  a  hard  question. 
He  should  not  hardly  think  him  competent.  He  was  forgetful ; 
sometimes  he  appeared  rational,  and  then  he  would  forget  Ho 
places  his  objection  on  the  ground  of  his  forgetfulness.  In  his 
best  days  he  says  testator  had  a  curious  way  with  him. 

The  whole  of  this  witness's  testimony  is  rather  equivocal  as  to 
his  opinion  about  testator's  capacity.  He  either  really  doubts 
himself,  or  is  unwilling  to  be  committed  on  the  subject 

Henry  V.  Staats  says,  he  has  lived  since  1822  within  a  quar- 
ter of  a  mile  of  testator.  The  first  he  observed  the  old  man's 
mind  to  fail  was  in  1830,  or  the  fall  before.  From  1829  to  1834 
did  not  think  him  competent  to  make  a  will  disposing  of  his  ex- 
tensive property.  At  Abraham's  sickness  his  mind  was  gone. 
He  would  come  out  of  the  house  with  a  night-cap  and  apron  on, 
and  this  was  one  reason  he  thought  him  incompetent.  He  would 
say  his  children  cursed  him.  He  thinks  the  old  man  knew  what 
property  he  had,  but  did  not  know  the  value  of  it.  He  valued 
it  too  low. 

This  witness  never  had  dealings  with  testator,  nor  was  present 
when  he  dealt  with  others  after  1830. 

Henry  llnrder  had  known  testator  forty  years,  Spaaks  of 
seeing  him  once,  but  at  what  time  ho  does  not  say,  at  Kelly's 
mills,  when  he  said  his  family  used  him  ill,  and  said  he  had  ruin- 
ed them  all.  "Witness  thought  ho  had  failed,  but  not  altogether 
lost  his  reason.  He  appeared  to  have  "lost  liis  resolution,  Xho 
old  man,  on  another  occasion,  appeared  to  by  TUider  a  delusion, 


2-1-  PREROGATIVE  COURT, 

Whitenack  v,  Strykerand  Voorhies. 

that  all  was  going  to  destruction.  He  did  not  think  him  compe- 
tent to  make  a  will  after  lie  returned  into  the  neighborhood.  His 
mind  was  more  deranged  by  spells.  He  talked  to  witness  about 
the  Jews  being  God's  chosen  people :  now,  he  said,  the  Metho- 
dists were.  He  wished  he  had  died  some  years  ago,  and  gave 
as  a  reason,  he  would  not  have  so  many  sins  to  answer  for.  Ho 
would  sometimes  talk  rationally.  He  had  strange  imaginations. 
He  always  knew  the  witness.  Since  1830  does  not  think  him 
competent  to  make  a  will.  This  witness  believes  testator  under- 
stood the  relation  in  which  the  different  members  of  his  family 
stood  to  him,  and  to  each  other.  Spoke  of  once  drawing  him 
out  of  the  mud  with  his  team. 

This  witness  very  clearly  shows  a  wandering  at  times  in  tes- 
tator's mind.  He  mentioned  many  facts.  At  Abraham's  death 
he  says  he  did  not  appear  to  be  himself. 

Abraham  J.  Yan  Doren  knew  testator  thirty-five  years.  In 
1833,  being  the  assessor,  he  called  on  testator  for  his  property  to 
assess,  and  he  said  he  had  none.  His  evidence  is  confined  prin- 
cipally to  one  fact.  I  understand,  from  the  whole  case,  that  the 
old  man  had  before  this  put  out  his  property,  and  that  his  sons 
and  sons-in-law  occupied  it.  He  meant  they  should  pay  the 
taxes.  I  cannot  think  this  evidence  bears  on  the  case  as  much 
as  counsel  seemed  to  suppose.  The  testator  evidently  meant  to 
get  clear  of  the  tax  if  he  could. 

"William  "W.  Hall  speaks  of  sitting  up  four  or  five  nights  with 
testator  in  1832  or  1833.  He  talked  about  his  property.  That 
he  wished  each  to  have  an  equal  share.  Said  he  was  not  com- 
fortable, and  asked  him  if  he  could  not  get  some  aged  woman 
to  come  and  take  care  of  him. 

The  whole  conversation  of  this  witness,  as  related  by  him, 
instead  of  making  against  the  testator's  capacity,  in  my  opinion 
makes  directly  in  its  favor.  It  seems  rational,  and  just  such  as 
a  man  circumstanced  as  testator  was,  would  make. 

John  Huff  knew  testator  for  thirty  years,  and  lived  within 
three  quarters  of  a  mile  from  him.  He  complained  of  his  chil- 
dren, that  they  did  not  do  well.  Said  his  property  would  be 


JANUARY  TERM,  1838.  25 

Wbitenack  v.  Stryker  an  1  Voorhies. 

gone  in  four  years.  Says  he  spoke  of  his  boys  in  a  manner  they 
did  not  deserve.  lie  ascribed  much  of  his  conversation  to  imagina- 
tion. Has  heard  him  say  he  meant  to  do  as  well  by  one  child  as 
another.  From  1830  till  his  death  he  did  not  consider  him  com- 
petent to  make  a  will.  Abraham  died  in  1831  or  1832.  Has 
not  seen  testator  so  often  since  that  event,  but  frequently  before 
that.  Believes  he  knew  his  farms  and  the  property  he  owned, 
and  for  a  part  of  the  time  apprehended  justly  the  relationship 
existing  between  the  different  members  of  his  family.  The  rea- 
son of  the  witness  for  thinking  testator  incompetent  was  his 
affliction  in  body  and  mind.  He  seemed  to  have  no  mind  of  his 
own ;  he  was  childish.  He  says  he  believes  he  understood  his 
own  interest. 

It  is  very  evident  that  this  witness  believed  testator  incompe- 
tent to  make  a  will ;  but  his  reasons  for  that  opinion  are  based 
on  no  very  satisfactory  foundation,  so  far  as  they  are  stated  in 
his  evidence. 

Abraham  Quick  speaks  of  his  being  at  testator's  in  1832, 
during  Abraham's  sickness.  He  then  complained  that  every 
thing  was  going  wrong.  He  refers  to  some  papers  respecting  a 
road,  which  he  requested  him  to  take  charge  of.  This  witness 
says,  "  I  don't  pretend  to  say  that  the  old  man  was  or  was  not 
capable  of  disposing  of  and  managing  liis  property." 

Jacob  R.  Schenck.  This  witness  is  much  relied  on  by  the 
caveators.  He  relates  a  conversation  with  testator  during  Abra- 
ham's sickness,  from  wkich  he  inferred  his  mind  had  failed  him. 
He  said  that  he  was  exhausted  from  old  age.  That  he  held  but 
little  conversation  with  him,  for  the  reason  that  he  considered 
him  incapable  of  holding  one.  Says  testator  talked  much  about 
his  property  being  spent,  and  complained  of  the  extravagance  of 
his  son's  wife.  He  says  he  never  saw  him  commit  any  ridicu- 
lous or  extravagant  action.  His  test,  he  says,  of  testator,  was 
pretty  much  confined  to  one  conversation ;  lie  made  up  his  mind 
from  what  he  then  saw  and  heard. 

This  witness  evidently  made  up  his  mind  at  once  against  tes- 
tator's capacity,  and  after  that  gavo  himself  no  further  thought 


26  PREROGATIVE  COURT 

"Whitenack  v.  SLryker  and  Voorhies. 

about  it.  He  speaks  of  linn  as  miserly  in  his  disposition.  The 
time  of  Abraham's  sickness,  it  would  seem  from  all  the  evidence, 
was  the  worst  period  with  the  testator,  and  this  is  the  time  to 
which  this  witness  refers. 

William  T.  Davis  made  shoes  for  the  family.  Latterly  he 
observed  testator  was  not  as  rational  as  formerly.  From  being  a 
politician  he  turned  to  complaining  of  his  family.  In  1833,  the 
old  man  was  quite  childish  by  spells.  Talked  strange.  He  re- 
lates a  course  of  conversation  at  this  time,  clearly  showing  that 
his  mind  wandered.  He  spoke  of  Prime  as  the  proprietor  of  the 
farm.  He  fretted  about  every  thing  going  wrong :  called  the 
stills  balloons,  and  said  they  were  building  castles  in  the  air. 
At  times,  he  says,  he  would  talk  quite  rational.  From  1832  till 
his  death,  he  would  not  think  him  capable  of  doing  any  business 
of  importance.  He  does  not  think  that  testator  was  crazy,  but 
that  his  health  and  age  and  family  affairs  had  destroyed  his 
mind.  He  knew  his  farms,  and  where  they  lay,  and  complain- 
ed that  Joseph  could  not  make  a  living  off  the  farm  he  was  on. 
He  thinks  he  knew  the  nature  of  the  relationship  between  the 
different  members  of  his  family.  He  would  answer  questions 
sometimes  correctly,  and  sometimes  not. 

No  evidence  more  clearly  than  this,  shows  that  testator  was 
very  different  in  the  state  of  his  mind  at  different  times. 

There  are  several  other  witnesses  on  the  part  of  the  caveators, 
but  they  are  by  no  means  as  full  or  circumstantial  as  the  above, 
nor  do  I  perceive  that  they  at  all  vary  the  general  complexion  of 
the  case.  They  establish,  beyond  all  doubt,  from  the  year  1830, 
periods  when  the  testator's  mind,  from  the  tenor  of  his  conver- 
sation, was  wandering,  and  at  other  times  rational. 

After  the  most  careful  examination  of  all  the  evidence  on  the 
part  of  the  caveators,  I  can  come  to  no  other  conclusion,  than 
that  the  testator  was,  during  the  last  years  of  his  life,  from  1830, 
at  times  affected  in  his  mind ;  and  I  am  equally  clear,  from  the 
same  evidence,  that  during  the  same  time  he  had  lucid  intervals. 

Many  of  the  witnesses  speak  of  his  talking  at  times  rationally, 
and  for  an  hour  together :  that  he  was  in  an  especial  manner 


JANUARY  TERM,  1838.  27 

Wbitenack  v.  Stryker  and  Voorhies. 

affected  at  the  time  of  Abraham's  death.  The  general  charac- 
ter of  the  testator  seems  to  have  been,  an  inordinate  attachment 
to  property — a  love  of  money.  This  led  him  to  complain,  as  he 
left  active  life,  that  his  sons,  and  all  around  him,  mismanaged ; 
and  his  great  fear  seemed  to  be  that  they  would  all  come  to 
want. 

Taking  this  view  of  the  evidence  on  the  part  of  the  caveators, 
in  connexion  with  the  very  decided  character  of  that  on  the  part 
of  the  executors,  I  can  bring  my  mind  to  no  other  conclusion, 
than  that  the  weight  of  evidence  is  in  favor  of  the  capacity  of  the 
testator  at  the  tunes  he  executed  the  first  and  second  codicils. 
No  witness  meets  the  direct  proof  of  capacity  at  the  tune,  except 
it  be  by  general  opinion. 

Another  ground  was  taken  by  the  counsel  for  the  caveators ; 
that  the  testator  made  these  codicils  under  an  improper  influence. 
I  can  see  no  just  ground  in  the  evidence,  for  this  charge.  It  is 
lawful,  and  every  way  proper,  for  a  son  to  advise  with,  and  in- 
fluence by  fair  argument  and  reason,  a  father.  It  is  natural  that 
they  should  have  more  or  less  influence  with  liim.  I  cannot  see 
any  threats  made  by  the  sons  towards  the  father,  to  induce  the 
making  of  these  codicils.  Joseph  and  Abraham  both  went,  at 
different  times,  after  persons  to  write  the  papers,  but  I  observe 
they  did  not  even  remain  in  the  room  at  the  times  they  were  dic- 
tated or  executed.  Tf  the  testator  had  been  unfit  to  dispose  of 
ihis  property,  or  do  any  business,  as  some  of  the  witnesses  sup- 
pose, how  is  it  possible  he  could  have  dictated  these  wills  ?  And 
would  these  sons,  if  they  had  had  the  entire  control  of  him,  have 
eft  him  at  the  very  moment  when  it  was  most  essential  for  them 
o  be  present  ?  I  should  be  very  far  from  supposing  the  testator, 
.o  be  a  man  likely  to  be  controlled.  I  should,  from  the  evidence, 
rather  suppose  ho  was  obstinate  and  self-willed.  At  all  events, 
there  is  no  sufficient  evidence  to  sustain  the  ground  of  improper 
influence. 

.  From  looking  into  the  will  and  codicils  themselves,  there  seems 
to  bo  no  great  motive  for  the  sons  to  have  used  thb  influence  to 
obtain  the  provisions  made  by  the  two  codicils.  The  great  ob- 


28  PREROGATIVE  COURT, 

'\Yhitenack  v.  btryker  and  Voorhi-S. 

ject  of  one  was,  to  change  the  executors,  and  of  the  other,  to 
place  the  property  for  the  daughters  in  tnipt.  They  gained  no- 
thing  themselves  worthy  of  making  use  of  such  extraordinary 
and  fraudulent  means.  Neither  do  I  see  any  thing  on  the  face 
of  these  papers  improper  or  unreasonable.  They  carry  the  im- 
press of  a  rational,  just  and  fair  man. 

In  the  view  which  I  have  thus  taken  of  this  case,  I  am  met 
by  two  inquisitions  which  have  been  taken  in  reference  to  this 
very  testator,  on  commissions  issued  out  of  the  court  of  chancery, 
one  bearing  date  the  80th  day  of  May,  1834,  and  the  other  the 
1st  day  of  January,  1836.  By  the  first,  the  testator  was  found 
at  the  time  of  taking  the  same,  a  lunatic  enjoying  lucid  inter- 
vals, and  that  he  had  been  so  for  thirty  months  prior  thereto. 
By  the  second,  the  testator  was  found  to  be  of  unsound  mind, 
and  mentally  incapable  of  managing  his  affairs,  and  that  he  had 
been  of  unsound  mind  since  December,  1832.  Thess  inquisi- 
tions are  not  pretended  to  be  conclusive  on  the  case  ;  but  it  is 
claimed  for  them,  that  they  are  entitled  to  all  that  respect  which 
is  due  to  the  opinions,  thus  expressed,  of  so  large  a  number  of 
the  most  respectable  citizens  of  the  county  of  Somerset.  This 
is  perfectly  correct.  They  are  entitled  to  all  the  respect  which 
any  men  acting  on  the  subject  before  them,  could  possibly  have. 
Some  of  the  jurors  I  know,  and  I  respect  no  men  among  us 
more.  Their  business  and  mine  is  very  different.  They  have 
decided,  from  the  general  character  of  the  testator,  that  he  was 
incompetent  to  manage  his  business  ;  it  is  my  duty  to  decide 
whether,  at  the  times  he  executed  two  instruments  of  writing, 
he  was  of  sound  mind.  "With  the  first  inquisition  I  am  fully 
agreed.  That  affirms  that  the  testator  had  lucid  intervals.  In 
truth,  it  is  not  quite  certain  that  the  jurors  on  the  last  inquisition 
would  have  been  willing,  from  a  view  of  the  whole  evidence,  to 
have  said  the  testator  had  no  lucid  intervals.  I  should  have  very 
little  doubt  that  these  very  jurors  would,  one  and  all,  upon  this 
evidence,  agree  with  me,  that  this  testator  was,  at  times,  disor- 
dered in  his  mind  during  the  last  years  of  his  life,  and  at  tunes 
psrfcctly  rational. 


JANUARY  TERM,  1838.  29 

Wiiitenack  v.  Stryker  and  Voorhies. 

It  would  have  given  me  much  pleasure,  could  I  have  agreed 
v/ith  the  judges  of  the  orphan's  court  who  decided  this  cause. 
It  is  a  case  not  without  its  difficulties,  and  while  I  know  those 
gentlemen  fully  discharged  their  consciences  in  the  decision  they 
made,  it  is  my  duty  now  to  see  that -I  acquit  mine. 

I  therefore  reverse  the  judgment  of  the  orphan's  court  of  the 
county  of  Somerset,  so  far  as  it  rejects  the  first  and  second  codi- 
cils, and  direct  probate  of  the  same  to  be  made ;  and  affirm  it, 
so  far  as  it  directs  the  costs  to  be  paid  out  of  the  testator's  es- 
tate. 

Considering  this  a  case  of  some  doubt,  and  well  worthy  of 
receiving  a  full  investigation  and  decision,  I  direct  the  costs  of 
tliis  appeal,  with  reasonable  counsel  fees  on  the  hearing  before 
this  court,  to  be  taxed  by  the  clerk,  to  be  paid  out  of  the  tes- 
tator's estate. 

CITED  in  Vananker.,  Matter  of,  2  StarTc,  192;  Hunt  v.  Hunt,  2  Sear,  163; 
Tangcr  r.  Skinner,  1  KeCart.  335  ;  Turner  v.  Cbecnemann,  2  McCart. 
£45. 


CASES 

ADJUDGED  IS 

THE  COURT  OF  CHANCERY 

OP  TEE  STATE  OF  NEW-JERSEY. 
APBIL    TEEM,    1838. 


ANDREW  SHOWBILL  and  others,  heirs  at  law  of  JAMES  E. 
SNOWHILL,  deceased,  v.  The  sarvmng  Executor  of  KEBEO 
OA  SNOWHILL,  deceased. 

Where  an  act  of  the  legislature  authorizes  a  gnardian  to  make  sale  of  the 
real  estate  of  his  ward  and  directs  the  proceeds  out  of  the  Bale  to  be  put 
at  Interest  for  the  benefit  of  the  ward,  without  making  any  provision  for  thu 
disposition  of  the  fund  in  the  event  of  the  infant's  death  ;  upon  the  death 
of  the  infant,  intestate,  the  proceeds  of  such  sale  will  go  to  his  heirs  at 
law;  pursuant  to  the  statute  regulating  the  descent  of  real  estate,  and  not 
to  his  next  of  kin. 

This  court  will  give  to  a  decision  of  the  court  of  appeals  made  in  the  fame 
cause,  its  fair  and  just  legal  effect. 

Where  a  decree  of  the  chancellor,  allowing  a  general  demurrer  is  reversed 
in  the  court  of  appeals,  and  the  demurrer  overruled,  the  court  of  appeals 
should  direct  the  r  cord  and  proceedings  in  the  cause  to  be  remitted  to  the 
court  of  chancery. 

Where  the  real  estate  of  an  infant  is  sold  by  the  guardian,  (by  virtue  of  an 
act  of  the  legislature,)  the  guardian,  or  her  representatives,  may  retain  BO 
much  of  the  money  arising  from  the  sale,  to  satisfy  a  claim  of  the  guardian 
in  her  own  right,  ns  the  land  would  have  been  liable  for  in  case  it  had  no; 
been  sold. 

The  chosea  in  action  of  the  wife,  survive  to  her  on  the  death  of  her  husband, 
unions  he  reduce  th(  m  into  possessions  during  his  life. 

What  will  constitute  a  reducing  of  a  chose  in  action  of  the  wife  into  posses, 
sion,  BO  us  to  deprive  her  of  the  claim  as  survivor? — Qu, 


APRIL  TEilM,  1838. 


Siiowhill  ct  al.  v.  Executor  of  Snowhill. 


A  legacy  to  a  married  woman  is  a  chose  in  action,  and  governed  by  the  same 
rule  (as  to  survivorship)  as  all  other  choses  in  action. 

THE  facts  of  the  case  fully  appear  in  the  opinion  of  the 
chancellor. 


,  for  complainants. 
I.  H.  Williamson  and  Watt,  contra. 

The  land  of  the  infant  having  been  sold  by  virtue  of  an  act 
of  the  legislature,  and  converted  into  money,  must  be  considered 
as  personal  property,  and  go  to  the  next  of  kin.  There  is  no 
equity  between  the  heirs  and  the  personal  representatives  :  they 
must  take  the  property  as  they  find  it.  3  Brown's  Ch.  Hep.  515  ; 
SVesey,  303. 

The  court  of  chancery  may  direct  the  land  of  an  infant  to  be 
converted  into  money,  or  money  into  land,  for  the  benefit  of  the 
ward.  The  legislature  may  exercise  the  same  power  ;  and  where 
the  conversion  is  made  by  lawful  authority,  there  is  no  equity 
between  the  heir  and  the  personal  representative.  2  Ves.jun.  77  ; 
3  John.  Ch.  Rep.  347,  370  ;  3  Brown,  510. 

And  where  the  property  is  changed  by  the  act  of  God,  the 
heirs  and  personal  representatives  must  take  the  property  as  they 
find  it  ;  so  where  the  conversion  is  by  the  wrongful  act  of  a 
stranger,  not  a  breach  of  trust.  3  Dessaus.  21  ;  1  Ves.  jun. 
4GO. 

It  is  only  in  cases  of  breach  of  trust  by  the  guardian  or  trus- 
tee, and  where  the  property  is  converted  by  him  without  lawful 
authority,  that  the  court  will  consider  money  turned  into  land, 
as  money,  and  e  converso.  1  Vemon,  435  ;  Ambler,  706,  419  ; 
1  Fonb.  82,  note  B.;  2  Eden1  8  Rep.  148,  154,  note;  3  P.  W. 
99,  101. 

The  land  of  James  E.  Snowhill  having  been  sold  by  the 
guardian,  by  virtue  of  an  act  of  the  legislature,  and  converted 
into  money,  must  go  to  the  next  of  kin. 

This  question  is  still  open  before  this  court,  notwithstanding 
the  decision  of  the  court  of  appeals.  That  court  merely  over- 


32  CASES  IN  CHANCERY, 

.     Suowhill  et  nl.  v.  Executor  of  Snowhill. 

ruled  the  demurrer.  At  law  the  decision  would  have  been  final, 
but  in  this  court  the  party  may  set  up  the  same  matter  in  his 
answer. 

A  new  case  is  presented  by  the  answers  of  the  defendants, 
different  from  that  decided  by  the  court  of  appeals. 

Rebecca  Snowhill,  the  guardian,  is  entitled  to  have  her  legacy 
bequeathed  by  her  father,  paid  out  of  the  real  estate  of  the 
infant. 

George  Snowhill  never  reduced  tne  legacy  into  possession :  it 
survives,  therefore,  to  his  wife,  and  her  personal  representatives 
are  entitled  to  it.  The  giving  of  a  legacy  to  a  debtor's  wife, 
does  not  discharge  the  debt.  A  legacy  may  satisfy  a  creditor's 
claim,  but  can  never  cancel  a  debt  due  to  the  testator.  Clancy 
on  the  Rights  of  Women,  2,  3,  4, 101,  111 ;  3  Ves.  jun.  469 ; 
9  Ves.  98-9. 

A  legacy  to  a  married  woman  is  a  chose  in  action,  and  rests 
on  the  same  principle.  Law  Library,  No.  Dec.  1S37  ;  Ward 
on  Legacies,  33;  11  Viner,  377,  sec.  8;  2  Dickens,  491; 
Clancy,  109. 

It  is  necessary  that  the  husband  should  do  some  act  to  reduce 
the  legacy  into  possession,  or  it  will  survive  to  the  wife.  9  Ves. 
173;  12  Ves.  49G;  16  Ves.  413 ;  2  Madd.  133;  5  Ves.  514; 
2  Green's  Rep.  516,  262;  2  Kent's  Com.  137-8. 

The  land  descended  from  George  Snowhill  to  his  son  James, 
charged  with  the  debt  due  to  the  estate  of  Matthias  Mount.  Had 
the  land  remained  unsold,  the  legatee  would  have  been  entitled 
to  her  legacy.  The  heirs  at  law  claim  the  money  as  land; 
they  must  take  it  subject  to  the  incumbrance. 

The  sale  under  the  act  did  not  affect  creditors.  Mrs.  Snowhill, 
the  legatee,  was  ignorant  of  her  rights.  This  court  will  relieve 
against  her  mistake.  1  Cond.  Eng.  Chan.  Rep.  541,  283; 
1  P.  W.  354;  Mosely,  364;  3  Swanston,  186. 

Her  representatives  may  retain  the  amount  of  the  legacy  out 
of  the  money  in  their  hands,  not  as  an  offset.  2  P.  W.  128, 298; 
4  Vcs.  763;  5  Madd.  28 


APRIL  TERM,  1838.  33 

Snowhill  et  al.  v.  Executor  of  SnowhilL 

E.  Van  Arsdale,  in  reply. 

The  question  as  to  the  right  of  the  heirs  over  the  personal  rep- 
resentatives to  receive  the  proceeds  of  the  sale  of  the  land,  has 
been  settled  by  the  court  of  Appeals.  This  court  must  give  eff ect 
to  the  decision  of  the  higher  tribunal. 

It  is  the  constant  practice  of  the  court  of  chancery,  to  preserve 
the  rights  of  inheritance  on  the  sale  of  an  infant's  property. 
11  Ves.  278 ;  2  Story's  E%.  585  ;  6  Ves.  6,  7. 

The  legacy  to  Rebecca  Snowhill  was  virtually  reduced  into 
possession  by  her  husband,  and  did  not  survive  to  the  wife.  He 
owed  the  estate,  the  legacy  was  in  his  hands,  and  he  had  a  right 
to  retain  it.  0  Vesey,  101. 

TUB  CHANCELLOR.  George  Snowhill  died  in  the  year  1824, 
intestate,  seized  in  fee  of  one  undivided  half  part  of  a  tract  of  land 
in  the  county  of  Middlesex ;  leaving  a  widow,  Rebecca  Snowhill 
and  one  child,  a  son,  James  E.  Snowhill,  his  sole  heir  at  law,  an 
infant  of  tender  years.  The  legislature  of  New-Jersey,  on  the 
petition  of  Rebecca  Snowhill,  who  had  been  appointed  guardian 
of  her  son  James,  on  the  15th  of  December,  1826,  passed  an 
act  authorizing  the  said  Rebecca  Snowhill  to  sell  the  said  lands 
belonging  to  her  son,  and  which  descended  to  him  as  heir  at  law 
of  his  father ;  and  directed  the  proceeds  of  such  sale,  after  de- 
ducting the  expenses  incident  thereto,  to  be  put  at  interest ; 
one  third  part  of  such  interest  to  be  paid  to  Rebecca  Snowhill,  as 
the  widow  of  George  Snowhill,  and  the  remaining  two  thirds  for 
the  use  of  the  said  James  E.  Snowhill.  This  act  made  no  provision 
for  disposing  of  the  fund  arising  from  this  sale,  in  the  event  of 
James  E.  Snowhill's  death,  but  left  ah1  parties  to  their  rights  at 
law  and  in  equity.  On  the  3d  day  of  April,  1827,  Rebecca 
Snowhill  conveyed  the  aforesaid  lands,  upon  a  sale  made  under 
said  act,  to  John  II.  Disborough,  for  three  thousand  five  hundred 
dollars,  and  took  a  bond  and  mortgage  upon  the  same  lands  as 
security  for  the  purchase  money.  After  the  passing  of  this  act, 
and  after  the  sale  made  under  it,  James  E.  Snowhill  died,  intes- 
tate. The  complainants,  as  the  heirs  at  law  of  the  said  James 


34  CASES  IN  CHANCERY, 

Snowhill  et  al.  v.  Executor  of  Snowhill. 

E.  Snowhill,  after  his  death,  filed  their  bill  in  this  cause,  against 
Rebecca  Snowhill  and  John  II.  Disborough,  in  their  lifetimes, 
claiming  the  money  arising  from  this  sale,  and  setting  out  the 
case  as  here  stated. 

To  this  bill,  the  defendants  severally  filed  a  general  demurrer, 
denying  the  equity  of  the  complainants'  bill.  These  demurrers 
were  argued  before  chancellor  Yroomj  who  sustained  the  demur- 
rers, and  directed  the  bill  to  be  dismissed.  From  this  decision 
the  complainants  appealed  to  the  court  of  appeals ;  which  court, 
after  argument,  reversed  the  chancellor's  opinion,  directed  the 
demurrers  to  be  overruled,  and  remitted  the  record  and  proceed- 
ings in  the  cause  to  this  court,  to  be  proceeded  in  according  to 
law,  and  the  practice  of  the  court. 

I  am  very  clear  as  to  my  duty  under  this  decision.  I  must 
give  to  it,  without  any  reference  to  my  own  judgment,  its  fair 
and  just  legal  effect.  It  is  a  decision,  in  the  same  cause,  of  a 
court  of  the  highest  authority  in  the  state.  In  fact,  I  should  not 
think  it  proper  to  express  an  opinion  on  the  subject,  considering 
this  part  of  the  case  as  already  settled.  Can  there  be  any  doubt 
as  to  the  legal  effect  of  that  decision  ?  The  facts  stated  by  tho 
bill,  are  admitted  by  tho  demurrer.  The  plain  question  upon 
the  bill  and  demurrer  was,  whether  the  heirs  at  law  of  James  E. 
Snowhill,  upon  the  case  'made  by  the  bill,  were  entitled  to  the 
money  arising  from  the  sale  of  his  lands.  The  decision  estab- 
lished that  right.  Had  no  new  question  been  made  by  the  an- 
swers, I  should  have  done  nothing  more  with  the  cause,  than  to 
have  made  a  reference  to  ascertain  the  amount  of  the  money  in 
the  hands  of  Rebecca  Snowhill,  to  the  end  that  a  final  decree 
might  have  been  made,  directing  the  same  to  be  paid  over  to  tho 
complainants. 

As  to  form,  the  decree  of  tho  court  of  appeals  was  strictly 
correct.  That  court  could  not  with  propriety,  upon  a  general 
demurrer,  have  done  any  thing  else  than  send  back  the  cause. 
They  did  not  mean  to  conclude  the  parties  from  setting  up  in 
tbcir  answer  any  new  ground  of  defence  they  might  have.  Any 
new  (matter,  therefore,  which  is  disclosed  by  the  defendant's  an- 


APRIL  TERM,  1833.  C5 

Suowaill  et  al.  v.  Executor  of  Snowhi'.l. 

swer,  and  not  set  out  in  the  bill,  is  fairly  before  the  court,  and 
must  now  be  settled.  On  the  argument,  I  allowed  counsel  to 
go  into  the  whole  case,  not  because  I  had  any  hesitation  as  to 
the  plain  path  of  my  duty  on  this  part  of  the  subject,  but  be- 
cause, at  the  breaking  of  the  cause,  I  could  not  foresee  what 
bearing  it  might  have  on  the  new  matter  set  up  by  the  answer. 
Pending  the  proceedings  thus  far,  Rebecca  Snowhill  died,  and 
the  answer  is  filed  by  "William  "W.  Conoyer  and  Charles  G. 
M?Chesney,  as  her  surviving  executors.  By  that  answer  it  is 
alleged,  that  George  Snowhill,  in  the  year  1811,  purchased  of 
Matthias  Mount,  the  father  of  his  wife  Rebecca,  his  homestead 
farm,  for  five  thousand  dollars,  which  farm  he  afterwards  ex- 
changed with  William  "W.  Conover  for  the  lands  which  he  left 
at  his  death,  and  which  were  subsequently  sold  under  the  afore- 
said act  of  the  legislature.  That  George  never  paid  this  money, 
but  gave '  his  five  bonds,  each  for  one  thousand  dollars,  and  a 
mortgage  on  the  same  premises,  to  secure  the  purchase  money. 
That  Matthias  Mount  died,  leaving  a  last  will  and  testament, 
and  making  his  two  daughters,  Mrs.  Conover  and  Mrs.  Snow- 
hill,  residuary  legatees  of  his  estate ;  and  that  the  principal  part 
of  this  estate  consisted  in  the  debt  due  from  George  Snowhill. 
That  George  died,  leaving  a  large  sum  duo  on  those  bonds, 
which  is  still  unpaid,  and  without  ever  having  reduced  into 
possession  the  legacy  left  his  wife,  under  the  will  of  her  father. 
The  defendants,  under  these  circumstances,  insist  that  the  lega- 
cy survived  to  Mrs.  Snowhill,  the  widow  of  George,  and  that, 
as  her  representatives,  they  have  a  right  in  equity  to  retain  the 
money  sought  to  be  recovered  by  the  complainants  in  this  action, 
or  as  much  as  may  be  necessary  to  satisfy  this  legacy.  That, 
as  the  complainants  ask  the  aid  of  a  court  of  equity  to  establish 
their  demand,  they  must  first,  in  the  language  of  the  Lav,-,  do 
equity.  That,  as  these  very  lands  descended  from  George  Snow- 
hill  to  his  son,  they  were  subject  to  his  debts,  and  would,  if  remain- 
ing unsold,  have  been  liable  to  pay  the  bonds  due  from  George 
to  the  Mount  estate,  out  of  which  money  this  legacy  is  due. 
That  the  court  will  make  the  fund  arising  from  the  sale  of  the 


£6  CASES  IN  CHANCERY, 

Snowhill  et  al.  v.  Executor  of  Snowhill. 

lands,  answer  the  same  purposes  of  justice  that  the  lands  must 
have  done  if  not  sold.  And  especially,  that  they  will  not  with- 
draw the  money  out  of  the  hands  of  a  party  who  has  so  strong 
a  claim  in  equity  to  retain  it. 

There  is  great  force  in  this  position,  and  it  will  be  found  by 
the  cases,  that  courts  of  equity  have  been  very  liberal  on  the 
subject  of  retaining  money  under  like  circumstances.  Therule 
is  established,  that  a  party  must  do  right  himself,  before  the 
court  will  extend  its  hand  to  his  relief. 

The  cases  on  the  subject  of  retaining  money,  have  gone  so 
far,  as  to  enable  an  executor  to  retain  money,  when  not  due  di- 
rectly to  the  party,  but  to  a  trustee  for  the  party.  2  Peere  Wil- 
liams, 299;  lUd,  129;  4  Vesey,  764;  5  Madd.  32. 

I  agree,  from  a  full  consideration  of  the  cases  on  this  subject, 
that  ilebecca  Snowhill  may  retain  so  much  of  the  money  arising 
from  the  sales  of  the  lands,  under  the  act  of  the  legislature,  as 
those  lands  would  have  been  liable  for  to  her,  in  case  they  had 
not  been  sold.  It  would  be  most  unreasonable  to  withdraw  it 
from  the  hands  of  her  executors,  until  a  claim  of  that  character 
was  satisfied.  This  raises  several  important  questions : — 1.  Has 
Ilebecca  Snowhill  any  claim  for  the  lagacy  under  the  will  of  her 
father?  2.  Does  George  Snowhill  owe  any  thing  to  the  estate  of 
Matthias  Mount?  And  3.  Could  Rebecca  Snowhill,  if  she  have 
any  claim,  have  required  payment  from  the  lands  of  her  son  ? 

Upon  the  first  point,  it  is  quite  certain,  that  by  the  will  of 
Matthias  Mount,  she  is  made  a  residuary  legatee,  and  that  such 
estate  consisted  of  a  debt  due  from  George  Snowhill.  I  can  see 
no  act  done  by  George  Snowhill  reducing  this  legacy  into  poc- 
session,  and  if  not,  the  right  survived  to  his  wife  on  his  death. 
In  2  Green's  Hep.  264  and  516,  it  is  clearly  settled  in  our  own 
courts,  that  the  choses  in  action  of  the  wife  survive  to  her  at  the 
death  of  her  husband,  unless  he  reduce  them  into  possession 
during  his  life.  This  is  settled  law.  What  will  constitute  a  re- 
ducing of  a  chose  in  action  of  the  wife  into  possession,  so  as  to  do 
\  rive  her  of  the  ckim  as  survivor,  has  often  been  made  a  question, 
tnd  the  cases  are  not  very  clear.  It  would  seem  to  be  one  rule, 


APRIL  TERM,  1838.  37 

Snowhill  et  al.  v.  Executor  of  Snowhill. 

tliut  lie  must  do  some  act,  by  wliich  he  need  not  join  his  wife,  in 
an  action  to  recover  it.  But  I  am  not  called  upon  to  settle  this 
question.  It  is  certain  the  husband  must  do  something :  in  tho 
present  case  he  does  not  appear  to  have  taken  a  single  step  in 
reference  to  this  legacy.  He  brought  no  suit ;  he  made  no  change 
in  tho  character  of  the  demand ;  he  does  not  appear  ever  to  have 
troubled  himself  about  it  in  any  way.  This  was,  no  doubt,  ow- 
ing to  the  fact,  that  the  legacy  could  only  be  paid  out  of  the 
money  he  owed  himself  to  the  testator.  He  probably  acted  on 
the  idea,  that  if  demand  was  made  of  him  for  the  payment  of 
his  bonds,  he  would  gain  a  credit  for  the  amount  of  his  wife's 
legacy.  Had  he  made  such  an  arrangement  with  the  represen- 
tatives of  Mount,  and  had  the  credit  made  on  his  bonds,  the 
claim  of  his  widow  must  have  been  gone.  But  he  did  nothing : 
h  ;>  left  it  as  he  found  it  at  the  testator's  death ;  and  I  cannot, 
Vvithout  violating  well-settled  principles  of  law,  hold  it  in  any 
other  way,  than  that  at  his  death,  the  right  of  his  wife  to  this 
bgcicy  survived  to  her.  His  personal  representatives  could  have 
maintained  no  action  for  its  recovery.  A  legacy  to  a  married 
woman  is  a  chose  in  action,  and  must  be  governed  by  the  same 
rule  as  all  other  choses  in  action.  Clancy's  Rights  of  Women, 
10D ;  2  Dickens,  491. 

The  next  question  is,  whether  George  Snowhill  owes  any 
taing  to  the  estate  of  Matthias  Mount  ?  And  upon  this  subject  I 
find  considerable  difficulty,  from  the  manner  in  which  this  busi- 
ness has  been  conducted.  It  is  very  difficult  to  discover  the  truo 
ctate  of  the  case.  Most  of  the  parties  have  died,  and  it  was 
never  contemplated  that  the  rights  of  parties  would  require  any 
further  investigation  on  this  subject.  The  executors  named  in 
the  will  of  Matthias  Mount,  never  acted ;  but  letters  of  adminis- 
'  tration,  with  the  will  annexed,  \vcrc  granted  to  T7illiam  AT.  Con- 
over,  who  in  December,  1822,  filed  an  inventory  of  tho  estate, 
consisting,  v,*ith  the  exception  of  a  email  note  of  thirty-five  dol- 
Lrs  ji£r.inst  Francis  Larrieon,  entirely  of  the  bonds  of  Gcorga 
Enov.-lrill ;  nmoimtinrj,  with  interest,  to  six  thousand  one  hundred 
and  tliirt v-one  dollars  and  ten  cents.  Cue  of  the  bonds  had  been 


38  CASES  DT  CHAXCEKY, 

Snowhill  et  al.  v.  Executor  of  Sno. \hill. 

given  up  by  tlie  testator  in  liis  life-time,  which  left  f our  bonds, 
each  of  one  thousand  dollars,  and  which,  with  interest,  made 
the  aforesaid  sum.  One  of  these  bonds,  by  an  en  d  orsement  upon 
it,  appears  to  have  been  paid  off,  except  six  dollars  and  sixty-three 
cents.  There  is  upon  each  of  these  bonds  an  endorsement,  signed 
by  "William  "W.  Conover  and  Rebecca  Snowhill  in  the  following 
words : — "  February  17,  1835.  The  within  bond  settled  and  di- 
vided, agreeably  to  the  will  of  Matthias  Mount."  What  this  en- 
dorsement means,  has  given  rise  to  much  speculation,  and  I  con- 
fess it  is  very  difficult  to  understand.  If  it  was  intended  to  dis- 
charge the  bonds  entirely,  why  not  cancel  them  at  once  ?  But 
they  are  kept  alive ;  and  it  must  be  remembered,  that  William 
"W.  Conover,  at  this  very  time,  was  the  administrator  with  tho 
will  annexed,  of  Matthias  Mount,  and  also  interested,  in  right 
of  his  wife,  in  the  bonds,  as  a  legatee  under  his  will.  Amidst  so 
much  uncertainty,  I  am  compelled  to  place  that  construction  on 
these  endorsements,  which  appears  to  me  nearest  the  truth.  My 
belief,  from  all  the  evidence,  is,  that  William  W.  Conover  and 
Hcbecca  Snowhill  settled  absolutely  and  entirely  all  the  claims  of 
William  W.  Conover  with  the  estate  of  George  Snowhill,  and 
by  that  settlement  the  bonds  were  not  paid  off  or  cancelled,  but 
each  party  was  to  have  an  equal  interest  in  those  bonds.  They 
constituted  the  whole  estate  of  Matthias  Mount,  in  which  they 
r;crc  equally  interested  as  residuary  legatees.  They  therefore 
nso  tho  expressions  "  settled  and  divided  the  within  bonds."  Tho 
]  nymcnts  made,  were  probably  by  the  board  of  Mr.  and  Mrs. 
Mount,  who  lived  with  George  after  he  purchased  the  farm.  At 
all  events,  it  stands  endorsed  as  a  payment,  and  must  be  so  con- 
sidered. I  consider,  therefore,  George  Snowhill  as  indebted  to  the 
estate  of  Matthias  Mount,  for  the  face  of  the  four  bonds,  with  in- 
terest, deducting  the  payments  which  arc  endorsed  thereon. 

The  third  point  to  bo  considered,  is,  whether  Rebecca  Snow- 
hill  could  have  required  payment  of  her  legacy  from  the  lands  of 
her  son  James,  had  they  not  been  sold?  Upon  this  there  can  be 
no  difficulty.  The  lands  descended  to  James  the  son,  subject  to 
the  payment  of  the  debts  of  his  father,  and  upon  a  suit  brought 


APRIL  TEEM,  1838.  3D 

Snowhill  et  al.  v.  Executor  of  Snowhill. 

must  have  satisfied  those  debts.  The  money,  when  collected, 
must  have  been  applied  by  the  representatives  of  Mount  accord- 
ing to  the  provisions  of  his  will. 

I  decide  this  cause  on  the  matters  set  up  in  the  answer,  up- 
on the  single  ground,  that  the  representatives  of  Rebecca  Snow- 
hill,  who  are  called  upon  to  pay  over  to  the  complainants  monies 
in  their  hands,  have  a  right  in  equity  to  retain  so  much  of  those 
monies  a3  will  satisfy  a  legacy  due  her,  and  which  the  landrf  out 
of  which  that  fund  has  arisen,  were  bound  to  pay.  It  is  clear, 
that  she  was  bound  first  to  apply  the  personal  estate  of  George 
Snowhill,  before  any  of  his  lands  could  be  reached,  in  payment 
of  his  debts.  By  the  settlement  of  her  accounts  in  the  orphan's 
court,  it  eeems  she  had  a  balance  in  her  hands  of  one  thousand 
six  hundred  and  six  dollars  and  seven  cents.  That  sum  must, 
therefore,  be  first  applied  towards  satisfying  her  legacy. 

Having  thus  settled  the  principles  on  which  1  consider  myself 
bound  to  decide  tliis  case,  there  must  be  a  reference  to  a  master 
to  ascertain  and  report. 

1.  The  amount  in  the  hands  of  the  surviving  executor  of  Re- 
becca Snowhill,  on  the  eale  of  the  lands  of  James  E.  Snowhill, 
under  the  act  of  the  legislature,  after  making  the  allowances 
authorized  by  that  act. 

2.  The  amount  due  her  for  her  legacy,  under  the  will  of  her 
father,  Matthias  Mount,  deducting  therefrom  the  personal  ea&to 
of  George  Snowliill  in  her  hands. 

3.  The  amount  due  from  George  Snowhill  on  his  said  bonds. 
And  I  reserve  all  other  equity  to  the  coming  in  of  the  mas- 
ters report. 

It  will  be  observed,  that  I  have  taken  no  notice  of  that  part 
of  the  case  upon  which  much  labor  has  been  expended  in 
taking  the  evidence,  going  to  show  that  George  Snowhill  made 
improvements  on  the  place  he  purchased  of  Matthias  Mount, 
and  on  the  other  hand,  that  he  never  paid  for  the  place,  but  re- 
ceived it,  with  all  the  stock,  directly  from  the  family  of  his  wife. 
In  the  view  I  take  of  the  case,  all  these  facts  can  make  no  dif- 
ference, lie  purchased  the  lands,  and  took  a  deed  for  the  same 


40  CASES  IN  CHANCERY, 

Suowhill  et  al.  v.  Executor  of  Snowhill. 

He  died  seized  in  fee  in  his  own  right,  and  it  cannot  vary  the 
case,  whether  he  bought  of  Matthias  Mount,  or  a  stranger  to 
him  and  his  wife. 

Kule  accordingly. 


WILLIAM  DICKEY  v.  DANIEL  K.  ALLEN. 

The  allegations  of  an  answer  not  responsive  to  the  charges  in  the  complain- 
ant's  bill,  must  be  snstained  by  proof.  The  answer  can  be  of  no  avail 
without  it. 

Where  the  bill  alleges  the  existence  of  a  partnership,  and  prays  an  account 
of  the  partnership  transactions  ;  an  allegation  in  the  answer,  that  by  an 
agreement  between  the  partners,  on  the  dissolution  of  the  partnership,  the 
complainant  was  to  pay  all  the  debts  of  the  firm,  is  new  and  independent 
matter,  not  responsive  to  the  charges  in  the  bilL 

The  circumstances,  that  the  complainant,  on  the  dissolution  of  the  firm,  con- 
tinued the  business  ou  his  own  account ;  that  he  sold  out  the  stock  on  hand 
at  the  dissolution,  in  the  course  of  this  business  ;  that  the  complainant, 
after  the  dissolution,  said  that  the  store  belonged  to  him  ;  and  that,  from 
the  manner  of  the  sale  of  tho  stock  on  hand ,  it  was  manifest  he  never  could 
account ;  are  not  sufficient  to  establish  the  agreement,  or  to  sustain  the 
allegation  of  the  answer. 

The  allegation,  that  one  partner  agreed  to  pay  all  the  debts  of  the  firm,  should 
be  clearly  established.  « 

TUB  bill  charges,  that  the  complainant  and  defendant,  by 
verbal  agreement,  became  partners  in  trade,  on  the  20th  of 
April,  1821,  and  continued  partners  until  the  5th  of  April,  1824, 
•when  the  partnership  was  dissolved  by  mutual  consent.  That 
each  partner  had  an  equal  interest  in  the  concern,  each  advan- 
cing the  same  amount  of  capital ;  being  equally  liable  for  all 
losses,  and  entitled  to  an  equal  share  of  the  profits.  That  since 
the  dissolution,  Allen  had  received  a  large  amount  of  money  due 
to  the  firm,  and  that  considerable  sums  of  money  were  still  due 
from  the  partnership.  That  an  action  had  been  commenced  in 
the  supreme  court  of  New-Jersey,  by  Allen  against  Dickey,  for 
five  thousand  dollars,  for  the  recovery  of  several  promissory  notes 

COTD  in  Oberlev.  Larch,  3  G  E.  Gr.  351 ;  Lurch  v.  Oberk,  Id.  675-580 


APEIL  TEEM,  1833.  41 

Lickey  v  Allen. 

which  were  connected  with  and  formed  a  part  of  the  partnership 
transactions :  that  no  settlement  had  been  made  of  the  partner- 
ship transactions ;  and  that  the  defendant  was  indebted  to  the 
complainant,  upon  the  partnership  account.  Tho  bill  prays  an 
account,  and  an  injunction  to  restrain  proceedings  at  law. 

The  answer  admits  the  partnership  and  the  dissolution,  as 
charged  in  the  bill ;  but  insists,  that  upon  the  dissolution,  it  was 
agreed  between  them,  that  Allen,  the  defendant,  should  retire 
from  the  firm ;  that  Dickey  should  take  all  the  stock  and  proper- 
ty of  the  firm,  collect  all  monies  due  to  the  partnership,  and  pay 
all  the  partnership  debts :  that  in  pursuance  of  the  agreement, 
Dickey  had  taken  possession  of  all  the  partnership  property,  and 
had  collected  large  sums  of  money  due  to  the  firm.  The  answer 
further  insists,  that  the  notes,  for  the  recovery  of  which  an  action 
at  law  had  been  commenced,  were  justly  duo  from  Dickey  to  Al- 
len ;  and  that  nothing  was  due  to  the  complainant  upon  the  part- 
nership account.  Admits  that  no  settlement  had  taken  place  of 
the  partnership  accounts ;  but  insists  that  the  agreement  mado 
between  the  partners,  at  the  dissolution  of  the  copartnership, 
was  a  sufficient  and  final  settlement  of  all  the  partnership  trans- 
actions. 

An  injunction  to  stay  the  proceedings  at  law,  had  issued  upon 
the  filing  of  the  bill,  which  remained  in  force  at  the  hearing. 
Depositions  had  been  taken  by  both  parties,  and  the  cause  came 
before  the  court  upon  bill,  answer,  replication  and  proofs. 

P.  Dickerson*,  for  complainant. 

A.  WJdtehead  and  /.  H.  Wttliamson>  for  defendant. 

THE  CHANCELLOR.  The  complainant  in  this  case,  seeks  to 
have  a  settlement  of  a  partnership,  existing,  as  he  alleges,  by  a  ' 
verbal  agreement  between  him  and  the  defendant,  in  a  store  at 
Paterson,  from  April,  1821,  to  April,  1824 — a  period  of  about 
three  years.  As  connected  with  this  partnership,  there  are  sun- 
dry notes,  given  by  the  complainant  to  the  defendant,  amounting 
7 


42  CASES  IN  CHANCEEY, 

Dickey  v.  Allen. 

to  a  very  considerable  sum  of  money,  and  now  in  a  train  of 
prosecution ;  which  suit  the  complainant  has  obtained  an  injunc- 
tion to  stay  the  proceedings  in.  These  notes,  it  is  alleged,  were 
given  on  account  of  the  partnership,  and  ought  not  to  be  prose- 
cuted until  the  partnership  accounts  are  settled,  and  it  13  ascer- 
tained upon  the  foot  of  that  account  how  much,  if  any  thing,  is 
due  and  owing  by  the  complainant  to  the  defendant. 

The  defendant's  answer  admits  the  existence  of  the  partner- 
ship, but  denies  that  he  is  bound  to  account,  on  the  ground  that, 
at  the  dissolution  of  the  firm,  it  was  agreed  between  the  complain- 
ant and  defendant,  that  the  defendant  should  retire  from  the  firm; 
that  the  complainant  should  take  the  stock  on  hand,  receive  all 
the  debts  due  to  the  company,  and  pay  all  the  debts  due  by  the 
company.  In  short,  that  the  defendant  was  to  be  absolved  from 
any  further  liability,  as  between  him  and  the  complainant,  for  or 
on  account  of  the  said  firm. 

If  this  statement  be  made  out  in  such  form  as  this  court  can 
say  it  is  true,  it  must  be  conclusive  on  the  case ;  for  under  such 
a  bargain,  there  can  be  no  reason  for  the  complainant's  calling  on 
the  defendant  to  account,  since  he  took  upon  himself  the  whole 
responsibility  of  settling  the  business  of  the  company,  without 
any  recourse  to  his  copartner.  But  this  allegation,  though  ex- 
pressly and  fully  made  by  the  answer,  is  not  sustained  by  any 
positive  proof  in  the  cause.  Indeed,  there  is  no  direct  evidence 
cither  way  on  this  subject.  What,  then,  must  be  the  effect  of 
the  defendant's  answer  ?  If  this  be  matter  responsive  to  the 
charges  in  the  bill,  the  defendant,  in  the  absence  of  any  contra- 
dictory evidence,  will  have  the  full  benefit  of  such  answer :  if  it 
be  not  responsive,  he  must  sustain  that  part  of  his  case  by  proof, 
and  the  answer  can  bo  of  no  avail  without  it.  I  am  clearly  of 
opinion  that  this  part  of  the  answer  is  no  way  responsive  to  tho 
bill.  The  bill  charges  the  existence  of  the  partnership,  the  ac- 
counts of  which  are  unsettled.  To  have  denied  the  partnership 
would  have  been  a  response  to  the  bill ;  but  that  is  admitted,  and 
new  and  independent  matter,  about  which  no  charge  is  made  in 
the  bill,  to  wit,  that  the  complainant  promised  to  pay  all  tho 


APRIL  TERM,  1838  43 

Dickey  v.  Allen. 

debts  liimself,  at  the  dissolution  of  the  firm,  is  set  up  as  a  reason 
why  the  defendant  is  not  bound  to  account.  This  is  the  same  as 
if  the  defendant  had  been  charged  with  making  his  bond  and 
mortgage  to  the  complainant,  and  he  should  by  way  of  answer, 
allege  that  he  had  paid  it.  This  would  show  a  good  reason  why 
1:0  account  should  be  had  in  respect  to  that  debt,  but  he  must 
fcustain  that  part  of  the  case  by  proof.  The  answer,  therefore, 
however  true  it  may  be  in  point  of  fact,  cannot  sustain  this  de- 
•foncc  without  proof. 

I  have  said  already,  that  this  part  of  the  case  was  not  sus- 
tained by  any  positive  or  direct  proof ;  but  it  is  contended,  that 
there  arc  facts  and  circumstances  incidentally  appearing  in  the 
case,  wliich  prove  that  the  complainant  did  make  the  agreement 
Ect  out  in  the  answer.  The  principal  facts  relied  on,  are,  that  at 
the  dissolution,  the  complainant  continued  the  business  on  his 
own  account :  that  he  sold  out  the  stock  on  hand  in  the  course 
cf  this  business :  that  complainant  stated  to  the  clerk,  Abraham 
liyerson,  after  the  dissolution,  that  the  store  belonged  to  him ; 
r.nd  that,  from  the  manner  of  the  sale  of  the  stock  on  hand,  it 
was  manifest  he  never  could  account.  These  and  other  circum- 
stances of  a  like  character,  are  relied  on.  But  they  come  very 
far  fihort  of  establishing  so  important  a  matter,  as  that  one  part- 
ner stipulated  to  pay  all  the  debts  of  the  firm.  A  matter  of  as 
grave  consequence  as  this,  should  not  be  made  out  upon  mere 
conjecture,  founded  on  certain  occurrences  of  this  character,  but 
should  be  clearly  established.  On  the  other  hand,  it  was  said 
with  much  force,  is  it  not  strange,  if  such  was  the  contract,  so 
important  in  its  character,  closing  the  whole  business  as  between 
the  parties,  that  there  is  no  writing  to  show  it — not  even  the 
cleric  or  a  single  witness  to  prove  it  ?  It  is  stated  in  the  evidence 
of  Mr.  Ryerson,  the  clerk,  that  the  business  was  conducted  in  a 
loose  way.  It  did  not  appear  to  have  been  a  very  heavy  concern 
for  these  parties,  and  nothing  would  be  more  uncertain  than  to 
draw  any  very  important  inferences  from  the  manner  in  which 
r.ion  conducted  their  business,  who  seem  to  have  gone  into  the 
iirm  without  «iny  agreement  in  writing,  and  to  have  closed  with- 


44  CASES  IN  CHA^CEET, 

Dickey  v.  Allen. 

out  any  evidence  of  the  terms  or  manner  in  which  the  same  was 
finally  adjusted. 

I  am,  therefore,  well  satisfied  that  that  part  of  the  defendant's 
answer,  that  Bays  the  complainant  bound  himself  to  settle  up 
the  partnership  debts  without  recourse  to  the  defendant,  is  not 
sustained  by  any  proof  on  which  the  court  can  with  propriety 
rest  its  judgment. 

But  it  is  further  contended  by  the  defendant,  that  if  an  ac- 
count must  be  taken  of  the  partnership,  the  notes  on  which  he 
has  brought  his  suit  ought  not  to  be  brought  into  that  account. 
It  is  manifest  from  the  answer,  that  most  of  the  money  for 
which  those  notes  were  given,  went  to  pay  the  debts  of  this  firm. 
The  parties  differ  mainly  in  this.  The  complainant  says,  the 
notes,  or  some  of  them,  were  given  as  memoranda,  showing 
how  much  the  defendant  had  advanced  for  the  firm ;  while  the 
defendant  contends,  that  being  still  liable  to  the  creditors  of  the 
firm,  he  lent  the  money  to  the  complainant  to  pay  the  debts 
with,  and  took  his  notes  for  the  amount.  The  statements  arc 
very  different,  yet  they  show  that  the  notes  relate  to  the  debts  of 
the  firm. 

Upon  the  whole,  I  shall  order  an  account  to  be  taken  of  the 
partnership,  according  to  the  prayer  of  the  bill ;  with  leave  to 
examine  into  and  report  how  far  the  notes  stated  in  the  bill  wero 
connected  with  the  partnership,  and  should  be  taken  into  the  ac- 
count in  such  settlement. 
Order  accordingly. 


Executors  of   ANDREW  BOWELS,   deceased,  v.  THOMAS 
AUTEN  and  others. 

flhe  maker  of  a  promissory  note,  is  a  competent  witness  to  prove  it  usu- 
rious. 

An  objection  to  the  competency  of  a  witness  ought  to  be  made  at  the  time  oi 
taking  the  desposition  ?—  Qu. 

To  constitute  usury,  under  the  statute  of  New-Jersey,  there  must  be  a  oonfrod 
in  violation  of  the  act. 


APRIL  TEEM,  1833.  45 


Executor?  of  Ho  well  v.  An  ten  o'  al. 


If  a  party  agree  to  lend  money  at  a  legal  rat)  of  interest,  and  after  com- 
pleting  the  contract,  ami  receiving  the  borrower's  obligation  f&r  the  money, 
withhol  ds  a  part  of  the  amount  loaned,  in  violation  of  the  agreement  of  the 
parties,  the  obligation  it  not  thereby  t  ilutad  wi;h  tr.ury,  alihoagh  the  mo- 
ney bo  withheld  by  the  lender  as  a  premium  for  tho  loan. 

Tae  oblig  tion,  in  such  c.ise,  i*  a  valid  security  f  jr  the  amount  actually  ad- 
vance! upon  it,  but  no  more.  The  borrower  will  be  entitled  to  a  credit  for 
the  amount  withheld  in  violation  of  the  Agreement 

TUE  bill  is  filed  for  the  foreclosure  cf  a  mortgage  made  by 
Thomas  Auten,  one  of  the  defendants,  to  Andrew  Ilowell  in  his 
life-time,  and  for  the  sale  of  the  mortgaged  premises.  The  answer 
admits  the  bond  and  mortgage,  but  insists  that  they  arc  usurious 
and  void.  The  facts  relied  upon  as  proving  the  usury,  sufficient- 
ly appear  in  the  opinion  of  the  chancellor. 

T.  Frelinghuysen,  for  complainants,  contended, 

1.  That  the  answer  contained  a  specific  charge  of  usury.   The 
transaction  charged  as  usurious,  must  be  proved  as  stated  in  the 
answer.      3  Stark.  1521 :  3  Term  Rep.  531 ;  2  Shower,  329 : 
1  Sdw.  N.  P.  4GG. 

2.  A  party  to  a  note  is  not  competant  to  prove  it  usurious. 
14  John.  R.  270 ;  17  Mass.  122. 

3    The  case  proved  does  not  constitute  usury. 

Hartwell,  for  defendant,  in  reply, 

It  is  sufficient  to  prove  the  charge  of  usnry  substantially  as 
laid.  3  StarL  1522 ;  1  East.  195 ;  4  Burr.  2251 ;  2  Sound. 
P.  and  E.  5GO. 

It  is  too  late  to  object  to  the  competency  of  the  witness.  Tho 
objection  should  have  been  made  at  the  time  of  taking  the  de- 
position, when  his  interest  might  have  been  released.  2  Stark. 
755  ;  10  Hod.  192 ;  2  Stark.  750. 

The  contract  being  tainted  with  usury,  the  mortgage  is  void, 
and  the  bill  must  be  dismissed.  2  John.  Cas.  GO ;  5  Law  Lib. 
70  ;  5  Term  Rep.  537. 

THE  CHANCELLOR.  Tin's  bill  was  filed  by  Andrew  Howcll 
in  his  life-time,  for  the  foreclosure  and  sale  of  the  premises  con- 


46  OASES  IK 


Executors  of  Howell  v.  An  en  et  al. 


talned  in  a  mortgage  bearing  date  the  fourth  day  of  March,  182,4, 
made  by  Thomas  Auten  to  him,  to  secure  the  payment  of  a 
bond  of  that  date  between  the  same  parties.  The  bill  is  in  the 
usual  form.  Thomas  Auten  has  filed  his  answer,  admitting  that 
he  gave  the  complainant  the  bond  and  mortgage  on  which  the 
suit  is  brought  ;  but  says,  that  one  Augustus  F.  Cammann,  his 
neighbor,  being  pressed  for  money,  informed  him  of  his  situation, 
and  that  Andrew  Howell  would  lend  it  to  him,  if  the  said  Thom- 
as Auten  and  one  John  Miller,  would  become  security  for  the 
payment  thererof  .  That  he  consented  to  become  security  for  one 
thousand  dollars  ;  after  which  Andrew  Howell  called  upon  him 
with  a  note,  signed  by  Augustus  F.  Cammann  and  John  Miller^ 
bearing  date  the  first  of  February,  1822,  payable  in  one  year,  to 
the  order  of  the  said  defendant,  Thomas  Auten,  for  one  thou- 
sand dollars,  which  he  indorsed.  That  after  indorsing  the  said 
note,  having  some  other  dealings  with  Andrew  Ho  well,  by  which 
he  became  indebted  to  him,  and  having  sustained  losses  to  a  con- 
siderable amount,  Andrew  Howell  required  him  to  execute  to 
him  the  bond  and  mortgage  before  stated,  as  well  for  the  monies 
he  owed  him  as  for  the  amount  of  the  said  note  on  which  he  was 
the  endorser.  This  he  did  with  reluctance,  and  not  until  he  was 
threatened  with  a  prosecution  for  the  money.  The  defendant 
then  states,  that  sometime  after  the  execution  and  delivery  of  the 
said  note,  the  precise  time  he  cannot  state,  but  believes-  it  was 
in  the  spring  of  the  year  he  executed  the  aforesaid  bond  and 
mortgage,  he  stated  to  Andrew  Howell  that  Cammann  objected 
to  the  payment  of  the  one  thousand  dollar  note,  and  meant  to  set 
up  the  plea  of  usury  :  that  he  charged  him,  Andrew  Howell, 
with  taking  twenty-one  per  cent,  for  the  loan  of  the  thousand 
dollars  for  a  year  ;  and  that  all  the  money  he  had  received  was 
seven  hundred  and  ninety  dollars.  That  Andrew  IIowcll  said 
he  did  not  think  he  had  taken  twenty-one  per  cent.  :  that  it  was 
not  more  than  one  hundred  dollars  in  all.  The  defendant  then 
concludes  his  answer  by  saying,  that  he  cannot  positively  say 
tlint  the  said  Andrew  IIowcll,  at  the  time  of  the  execution  and 
delivery  of  the  thousand  dollar  note,  took  from  Cumiuaim  twc 


APRIL  TERM,  1838.  47 


Executors  of  Howel!  v.  Anton  ct  al. 


hundred  and  ten  dollars  for  the  forbearance  of  the  said  sum  of 
one  thousand  dollars  for  one  year,  but  'believes  and  charges  tJie 
same  to  be  true.  He  then  insists,  that  the  bond  and  mortgage  are 
usurious  and  void  under  the  statute.  To  this  answer  a  replica- 
tion has  been  filed,  putting  the  cause  at  issue,  and  depositions 
taken. 

It  is  very  evident  that  the  defendant  himself  has  no  personal 
knowledge  of  the  transaction,  but  relies  on  believes  the  in- 
formation given  him  by  Mr.  Cammann.  He  answers  in  a  guard- 
ed manner,  and  with  great  propriety. 

The  single  question  raised  by  these  pleadings,  is,  whether  the 
bond  and  mortgage  is  tainted  with  usury  ?  If  so,  I  can  have  no 
alternative  but  to  declare  them  void.  But  before  I  can  do  this, 
seeing  that  such  a  result  is  highly  penal  in  its  character,  destroy- 
ing the  whole  demand  of  the  complainants  as  founded  on  the 
bond  and  mortgage,  I  ought  to  be  well  satisfied  that  the  case 
proved  comes  within  the  true  construction  and  meaning  of  the  act 
against  usury,  and  the  proof  from  the  mouth  of  competent  wit- 
nesses. I  have  already  stated  that  the  defendant,  by  his  answer 
clearly  relies  on  information  received  from  Augustus  F.  Cam- 
mann ;  and  when  I  examine  the  evidence,  I  am  equally  clear 
that  the  defendant  must  rely  on  the  evidence  of  the  same  person 
to  sustain  his  cause. 

This  witness  is  objected  to  by  the  complainants,  first,  because 
his  name  appears  as  one  of  the  makers  of  the  thousand  dollar 
note,  and  it  is  against  public  policy  that  a  man  shall  be  allowed 
by  his  own  evidence  to  destroy  a  negociable  instrument  on  which 
his  name  appears. 

If  this  was  a  new  question,  it  would  present  matter  for  grave 
deliberation,  for  I  confess  I  have  ever  felt  a  great  reluctance  to 
the  admission  of  such  a  witness ;  but  since  the  case  of  IZosevelt 
v.  Gardner,  in  2  Pennington,  791,  I  consider  it  settled  that 
this  objection  cannot,  alone,  exclude  the  witness.  The  practice 
has  been,  and  so  I  consider  the  rule  settled  in  New-Jersey,  that 
the  witness  is  competent.  But  this  objection  cannot  apply  to  the 
prefient  case.  This  action  is  not  founded  on  the  note.  That  was 


43  CASES  IN  CHANCERY, 

Executors  of  Howell  v.  Autcn  ct  al. 

gireii  up  to  tlic  party  at  tlic  time  tlie  bond  and  mortgage  were 
executed  on  which  the  present  action  is  brought. 

The  second  objection  is  more  serious,  on  the  ground  of  in- 
terest. It  seems  that  this  witness  is  the  only  party  really  inter 
csted  in  the  loan  of  the  thousand  dollars.  The  defendant,  Auten, 
is  only  security  for  Camrnann,  and  I  can  perceive  no-  good  rea- 
son why  a  recovery  on  this  bond  and  mortgage  will  not  make 
him  directly  liable  to  Autcn  for  the  money.  With  this  strong 
impression  on  this  point  against  the  competency  of  the  witness, 
I  incline  still  to  allow  his  testimony,  letting  the  objection  go  to 
his  credit  rather  than  to  liis  competency.  I  do  so  from  a  desire 
to  settle  the  case  on  its  merits,  as  more  satisfactory  to  all  the 
parties,  and  because  no  objection  was  raised  to  the  witness  at  the 
time  he  was  sworn,  when,  as  was  truly  said  by  the  defendant's 
counsel,  it  was  in  their  power  to  have  released  the  witness,  and 
thereby  made  him  competent. 

I  am,  then,  to  examine  this  case  upon  the  whole  evidence, 
the  most  material  of  which  is  that  of  Augustus  F.  Cammann. 
The  first  section  of  the  statute  against  usury,  provides,  "  that  no 
person  shall,  upon  any  contract,  take  directly  or  indirectly,  for 
loan  of  any  money,  wares,  &c.,  above  the  value  of  seven  dollars 
for  the  forbearance  of  one  hundred  dollars  for  a  year."  This  is 
a  case  under  the  old  law,  prior  to  the  4th  of  July,  1824.  The 
sotond  section  provides,  "  that  all  notes,  bills,  bonds,  mortgages, 
&c.,  made  for  the  payment  of  any  money  so  to  le  lent,  on  which  a 
higher  interest  is  reserved  or  taken,  shall  be  utterly  void."  It  is 
clear,  that  to  constitute  usury,  there  must  be  a  contract  in  vio- 
lation of  the  act.  In  2  Saunders  on  Pleading  and  Evidence, 
493,  it  is  said,  "  To  constitute  usury  under  the  act,  there  must 
bo  a  contract  with  an  unlawful  intent  to  take  illegal  interest." 
And  in  1  Camp.  149 ;  "  it  must  be  shown  that  there  was  a  con- 
tract or  agreement  for  usurious  interest :  for  if  the  interest  appear 
to  have  been  reserved  by  mistake,  or  upon  an  error  in  computa- 
tion, the  contract  will  riot  thereby  be  avoided."  It  has  also  been 
held,  that  tho  contract  must  be  tainted  with  usury  in  concoction 
and  any  subsequent  corrupt  contract  will  not  invalidate  it. 


APRIL  TEKM,  1838.  49 


Executors  cf  Howell  v.  Ant*,  n  et  nl. 


1  East.  95.  A  bond  made  upon  a  legal  contract,  to  cany  only 
legal  interest,  if  one  party  should  pay  a  higher  rate  of  interest 
than  the  law  allows,  and  the  other  party  should  receive  it,  would 
not  thereby  become  void,  for  the  plain  reason,  that  it  was  no 
part  of  the  original  contract. 

Taking  these  principles  as  true,  and  giving  full  credit  to  the 
testimony  of  Mr.  Cammann,  I  cannot  Bee  how  this  contract  can 
be  made  out  to  be  usurious.  From  his  own  case,  there  was  no 
contract  between  him  and  Andrew  Howell  ever  made,  by  which 
he  was  to  pay  more  than  the  legal  interest  for  this  money.  Being 
in  want  of  money,  Cammann  applied  to  Andrew  Howell  for  it, 
and  was  told  by  him  that  if  he  would  give  his  note  with  one 
John  Miller,  and  endorsed  by  Thomas  Auten,  that  he  could 
raise  the  money  on  it.  That  such  note,  for  a  thousand  dollars, 
was  accordingly  made  and  handed  to  Andrew  IIowelL  No  mo- 
ney, it  would  seem,  was  paid  until  after  the  note  was  executed 
and  delivered  to  Andrew  Howell.  "What  were  the  terms  of  the 
contract  ?  Was  Howell  to  have  any  thing  beyond  the  legal  in- 
terest for  the  loan  of  the  money  ?  This  is  the  material  question. 
The  witness  answers  it  explicitly.  Referring  to  the  note,  ho 
says,  "  there  was  nothing  but  common  interest  for  the  considera- 
tion." This  is  the  language  of  the  witness,  and  he  afterwards 
explains  the  meaning  of  the  word  common  interest,  as  used  by 
him  in  this  expression,  to  be  legal  interest.  Throughout  his 
whole  evidence,  he  complained  of  the  treatment  of  Andrew 
Howell,  in  not  paying  him  the  whole  of  the  thousand  dollars,  as 
a  breach  of  good  faith ;  not  as  a  withholding,  upon  any  express 
or  implied  contract  at  the  lending  of  the  money  that  he  might  do 
so,  but  as  being  contrary  to  both.  "We  have,  then,  this  case. 
Howell  agrees  to  lend  Cammann,  upon  his  note  with  security, 
one  thousand  dollars.  By  the  contract,  he  was  to  be  charged  no- 
thing but  the  legal  rate  of  interest.  Ilowell  pays  him  a  part  of 
the  money  by  a  Mr.  Hoagland  at  one  time,  being  two  hundred 
and  fifty  dollars,  and  a  part  at  another  time,  but  withholds,  con- 
trary to  good  faith,  a  part  of  the  money.  Is  this  usurious  with- 
in the  meaning  of  the  statute  ?  Ilowell  is  clearly  indebted  to 
8 


50  CASES  IS  CHANCERY, 

Executors  of  Howell  v.  Autcn  et  al. 

Cammann  for  the  money  lie  withholds.  In  other  words,  he  haa 
a  note  for  more  money  than  he  is  entitled  to.  This,  as  it  ap- 
pears to  me,  is  the  whole  case.  The  witness  further  states,  that 
he  asked  Mr.  Howell  about  the  item  of  two  hundred  dollars,  and 
told  him  it  was  too  much  interest  for  him  to  pay ;  to  which 
Howell  replied,  that  money  was  very  scarce,  and  could  not  be 
got  without  it.  Does  not  this  very  conversation  show,  that  the 
withholding  of  that  money  was  in  bad  faith,  and  against  the 
agreement  of  the  parties  ?  Might  not  Cammann,  upon  this  case, 
have  recovered  this  money  from  Howell  ?  But  the  witness  says, 
Howell  retained  this  money  as  a  premium  for  raising  the  thou- 
eand  dollars.  If  he  did,  it  was  not  by  virtue  of  the  original  con- 
tract, as  the  witness  expressly  swears.  I  consider  this  case  the 
same,  as  if  the  name  of  John  Tannest  had  not  been  on  the  note 
at  all.  I  have  no  doubt  the  real  transaction  was  between  Cam- 
mann and  Howell,  and  I  shall  protect  the  defendant  in  this  ac- 
tion from  paying  any  tiling  more  on  this  note  than  Howell  ad- 
vanced, with  the  interest  thereon,  that  being  the  good  faith  of  the 
contract ;  but  I  cannot  declare  the  same  usurious,  not  coming,  in 
iny  judgment,  within  the  provisions  of  the  act.  This  is  no  case 
of  cover  to  usury,  for  the  witness  declares  the  contract  to  have 
been  a  fair  and  just  one. 

There  appears  to  have  been  other  transactions  between  these 
parties,  and  wluch  were  blended  in  the  settlement  of  the  note. 
Cammann  thought  proper,  contrary  to  the  usual  course  of  busi- 
ness, to  give  tho  noto  first,  and  depend  on  Ilowell's  paying  him 
the  money  afterwards. 

The  evidence  of  James  Cain  relates  to  a  conversation  he  had 
with  Ilovrcll  on  this  subject,  in  1827.  He  went  to  see  him.  about 
a  note  of  Stephen  Perrinc.  This  must  have  been  after  Cam- 
mtnm  had  set  up  usury  in  this  case,  as  the  defendant,  in  his  an- 
swer, says  it  was  in  the  spring  of  1824  that  he  told  Howell  that 
<  ::imanu  meant  to  set  up  the  plea  of  usury  against  the  note. 
Tho  amount  of  tins  conversation  with  Mr.  Cain,  was,  that  the 
Perrinc  note  was  turned  into  this  Cammann  note;  and  Ilowell 
said  he  meant  to  wait  the  result  of  this  suit  before  he  disposed  of 


APEIL  TERM,  1838.  *      51 


Executors  of  Howell  v.  An  ten  et  al. 


that  claim,  for  he  did  not  know  but  they  might  lose  the  money 
on  account  of  usury.  But  he  adds,  as  a  reason  for  this  appre- 
hension, that  Cammann  was  a  strange  kind  of  man,  and  there 
woe  no  knowing  what  he  might  say.  This  evidence  no  way 
var  CG  the  case. 

Upon  the  whole  case,  therefore,  I  am  of  opinion,  that  the  con- 
tract on  which  the  bond  and  mortgage  in  this  case  were  given, 
was  not  usurious  within  the  meaning  and  true  construction  of 
the  statute  on  that  subject,  but  that  the  same  are  a  valid  security 
to  the  extent  of  the  money  advanced  by  Howell  on  the  same  to 
Cammann,  and  of  the  liabilities  of  Cammann  which  were  set- 
tled thereby.  I  shall  direct  a  reference  to  a  master,  to  ascertain 
the  amount  due  on  the  same,  in  conformity  with  this  opinion, 
with  direction  to  allow  the  defendant  a  credit  for  any  part  of  the 
thousand  dollars  which  was  never  paid  or  accounted  for  by  An- 
drew Ilowell  to  Augustus  F.  Cammann  on  the  loan. 

[Nora.  The  decree  in  this  cause  was  appealed  from  by 
Thomas  Auten,  one  of  the  defendants ;  and  at  May  term,  1839, 
the  decree  of  the  chancellor  was  unanimously  affirmed  by  the 
court  of  appeals.] 

CITED  in  Neville  v.  Demeritt,  1  Gr.  eh.  334;  Ware  v.  Thompson's  Ad., 
2  Beas.  67;  Hobolcen  Build.  Asso.  v.  Martin,  Id.  431 ;  Smith  v.  Sol- 
lister,  1  MeCar.  155;  Lee.  v.  KirlcpatricTc,  Id.  266;  Aubte's  Ad.  v. 
Trimmer,  2  C.  E.  Gr.  246. 

JOHN  FLANAGIN  v.  FEDERAL  CHAMPION  and  JESSE  EL  BOWEN. 

On  a  bill  filed  against  C.  and  B.,  as  partners,  the  declarations  of  0.  are  not 
admissible  against  B.  to  prove  tbe  partnership.  The  declaration  of  oiu> 
partner  is  only  admissible  against  the  other,  after  the  fact  of  tho  partnership 
id  established. 

The  declarations  of  one  partner,  made  after  the  dissolution  of  the  partner, 
ship,  arc  not  admissible  to  charge  his  copartner.* 
THIS  cause  came  before  the  chancellor  for  final  hearing,  upon 

the  bill,  answer,  replication,  and  proofs.    Jesse  II.  Bo  wen  alono 

•NOTE.    This  rnle  prevail*  in  New- York,  and  the  weight  of  American  au- 
thority is  in  conformity  with  it     Hackley  v.  Patrick,  3  Johns.  536;    TTafden 


52  CASES  IN  CHANCERY 

Flanigan  v.  Champion  and  Bowen. 

answered.     The  charges  of  the  bill,  the  nature  of  the  defence, 
and  the  evidence  relied  upon  by  the  respective  parties,  so  far  as 
are  necessary  to  a  clear  understanding  of  the  case,  appear  in  tho 
opinion  of  the  chancellor. 
Jeffers,  for  complainant. 

Wall,  for  defendant. 

THE  CHANCELLOR.  The  complainant  is  a  merchant  in  the 
cit}  of  Philadelphia,  who,  during  the  summer  and  fall  of  1833, 
sold  goods  to  a  considerable  amount  to  Federal  Champion,  who 
•was  a  storekeeper  at  Gravelly  Run,  in  the  county  of  Gloucester, 
in  this  state.  Shortly  after  selling  these  goods  to  Federal  Cham- 
pion, he  failed  for  a  large  amount ;  and  upon  investigating  his 
course  of  conduct  for  some  time  previous  to  his  failure,  and  par- 
ticularly on  finding  the  extent  of  his  recent  debts,  no  doubt  re- 
mained on  the  mind  of  the  complainants  of  his  fraudulent  con- 
duct. His  conduct  after  this  failure,  in  trifling  with  his  creditors, 
by  abortive  attempts  at  settlemcnt,was  well  calculated  to  strength- 
en this  belief.  The  complainant  has  entered  up  a  judgment 
against  Federal  Champion  for  his  demand,  or  a  part  thereof, 
and  taken  out  execution  against  his  property.  Standing  as  a 
judgment  and  execution  creditor  of  Federal  Champion,  the  com- 
plainant has  filed  his  bill,  as  well  in  his  own  behalf  as  in  behalf 

fi  al  v.  SherburM  it  al.  15  Johns.  42 i  ;  M'dchtll  v.  Roulstone  et  al.  2  Hall, 
361 ;  Shelion  v.  Cocke  et  al.  3  Mu»f.  101 ;  forks  v.  IVe'ford  and  Co.  i  Zlunf. 
215  ;  Walktr  tt  al.  v.  Dubemj,  1  Marshal,  180. 

But  it  seems  tho  English  rulo  ia  otherwise.  After  t*  dissolution  of  partuer- 
ubip.  the  admission  of  one  partner  will  bo  binding  uponhin  copartners,  if  itrelato 
to  a  transaction  which  occured  during  its  continuance  ;  although  in  matters 
which  have  subsequently  nrisen,  tho  admission  of  one  partner  ia  not  evidence* 
to  cbargo  tie  other  members  of  the  firm.  Wupd  v.  "Dradtllck  1  Taunt.  1C1 ; 
Eoani  v.  Drummond,  4  Esq.  N.  P.  C.  1 9  ;  Pritchanl  v.  Drop  r,  1  7?uss.  «)<il 
Mylne,  191;  2  Slarkle's  Ev.  (Gth  America^  tditiorl  £3;  Gow  en  Fart  00, 
237,  COS.  Au-1  this  rule  has  the  sanction  of  Bcrernl  American  author!  ics. 
1  Galiis  n,  CC5.  per  Story,  J.  ;  3  7/ayto,  010,  Oil  ;  2  Lay  CG3.  Sea  also 
Smith  v.  Walker  e'  al.  6  Johns.  267 


APRIL  TERM,  1838.  53 

Flanignn  v.  Champion  and  Bowen. 

of  all  other  creditors  of  the  said  Federal  Champion,  who  should 
come  in  and  contribute  to  the  expenses  of  this  suit ;  and  after  a 
very  full  statement  of  all  his  transactions  with  Federal  Champion, 
charges,  that  Jesse  II.  Bowen  was  a  partner  of  Champion,  and 
bound  to  pay  his  debt.  The  bill  further  seeks  to  set  aside  a 
judgment  entered  up  in  the  inferior  court  of  common  pleas  for 
the  county  of  Gloucester,  on  the  llth  day  of  August,  1834,  in 
favor  of  the  said  Jesse  II.  Bowen,  against  the  said  Federal 
Champion,  for  five  thousand  dollars,  or  thereabouts,  as  being 
fraudulent  and  void  against  creditors,  and  without  consideration. 

To  this  bill  Jesse  H.  Bowen  alone  has  answered.  That  an- 
swer is  full  and  explicit  to  the  charges  made  in  the  bill.  Upon 
the  charge  made  against  him  of  being  a  partner,  he  denies  any 
such  partnership,  or  any  other  connexion  in  business  with  him, 
except,  as  the  owner  of  the  timber  standing  on  two  tracts  of  land 
in  the  county  of  Gloucester,  he  agreed  to  let  Federal  Champion 
coal  the  same,  on  condition  that  he  deli vered  to  him  one  fifth  of 
the  coal  made  thereon ;  which  agreement  he  afterwards  varied,  so 
as  to  let  said  Champion  send  all  the  coal  to  market,  and  pay  him 
one  fifth  of  what  the  same  should  bring,  after  deducting  freight 
and  inspection.  As  to  the  judgment,  the  defendant  says  the 
bond  on  which  the  same  was  entered  was  given  for  a  note  which 
ho  held  of  Champion's,  and  which  was  justly  due  him,  and  giv- 
en for  cash  at  different  times  lent,  paid  and  advanced  to  him, 
and  for  cord-wood,  coal,  flick-stuff  and  planks,  sold  and  deliver- 
ed by  him  to  the  said  Federal  Champion. 

From  a  careful  reading  of  the  answer,  I  consider  it  a  direct 
and  full  denial  of  the  existence  of  any  partnership,  or  connexion 
in  business  in  any  way,  except  as  to  coaling  the  timber  on  the 
aforesaid  tracts  of  land.  There  is  no  equivocation  or  evasion  on 
the  subject.  And  as  to  the  judgement,  the  defendant  has  mado 
out  a  full  and  legal  consideration.  So  far,  therefore,  as  the  an- 
swer is  concerned,  it  is  responsive  to  the  material  charges  made 
in  the  bill,  and  the  defendant  must  have  the  full  benefit  of  it. 

We  are,  then,  to  look  into  the  evidence,  to  see  whether  tho 
complainant  has  overcome  this  answer.  It  will  be  seen,  that 


CASES  IN  CHANCERY, 


Flaniganv.  Champion  andBo\ven. 


much  reliance  has  been  placed  upon  the  declarations  of  Federal 
Champion,  repeatedly  made  to  witnesses,  that  Jesse  H.  Bowen 
was  his  partner.  I  cannot  for  a  moment  listen  to  such  evidence. 
Nothing  could  be  more  dangerous,  than  to  allow  the  declarations 
of  a  man  deeply  involved  in  debt,  to  make  out  that  another  was 
his  partner.  No  man  would  be  safe.  Even  in  a  case  of  actual 
partners,  the  declarations  of  one  partner  cannot  be  given  in  evi- 
dence to  affect  the  other,  after  the  dissolution  of  the  firm.  It 
was  said  on  the  argument,  that  where  a  prima  facie  partnership 
was  proved,  the  declarations  of  one  of  the  partners  may  be  used 
against  the  other.  This  kind  of  evidence,  however,  can  never 
be  relied  on  to  establish  the  fact  of  a  partnership,  but  may  be 
competent  on  other  points,  when  the  court,  from  the  other  evi- 
denco  in  the  case,  see  good  reason  to  believe  that  there  was  a 
partnership.  I  shall,  therefore,  reject  the  declarations  of  Federal 
Champion,  in  examining  the  evidence  on  this  subject.  The 
evidence  should  be  satisfactory  in  a  case  of  this  kind,  not  of  a 
doubtful  character,  as  the  consequences  must  be,  if  made  out 
that  this  man  was  a  partner,  that  he  will  be  called  on  to  answer 
heavy  demands,  and  probably  to  an  amount  entirely  ruinous. 

One  fact  relied  on  by  the  complainant  to  establish  the  existence 
of  a  partnership,  is  an  occurrence  that  took  place  on  one  occa- 
sion, when  Federal  Champion  was  arrested  for  debt  by  the  sheriff 
of  Gloucester.  Champion  sent  for  Bowen,  to  bo  liis  security  for 
his  appearance  r.t  court,  which  he  refused  to  do.  Champion  then 
pulled  an  instrument  of  writing  out  of  his  pocket,  and  said, 
"  Damn  him,  he  is  my  partner."  lie  read  the  instrument,  and 
the  witness  says  he  does  not  understand  the  nature  of  instruments 
of  that  character,  but  he  took  it  to  be  an  article  of  copartnership. 
Ho  thought  it  read  strong,  and  was  a  general  partnership.  The 
witness  stated,  that  he  knew  the  hand-  writing  of  both  Bowen 
and  Champion,  and  he  behoves  the  instrument  was  in  the  hand- 
writing of  one  or  both  of  them,  ho  cannot  say  which.  Another 
witness,  Mr.  "Walker,  states,  that  the  hand-writing  of  these  men 
are  not  at  all  alike.  When  Champion  read  this  paper,  he  was 
on  horseback.  This  evidence  is  entirely  to  loose.  The  witness 


APRIL  TERM,  1838.  55 

Flanigan  v  Champion  and  Bowen. 

did  not  have  the  paper  in  his  hand,  hut  depended  entirely  on  the 
reading  of  Champion,  sitting  on  his  horse,  and  gives  his  own 
construction  of  the  character  of  the  instrument.  It  may  have 
related  to  the  bargian  hetween  the  same  parties  for  coaling.  It 
must  be  remembered,  that  Champion  was  enraged  at  Bowen  for 
Hot  becoming  his  surety.  On  another  occasion,  Bo  wen  was  ask- 
ed if  he  was  in  partnership  with  Champion :  he  answered,  "  we 
are  concerned  together."  He  said  they  were  partners ;  but  did 
not  say  they  were. partners  in  the  store.  All  this  may  be  very 
fairly  ascribed  to  the  connexion  the  parties  had  in  the  coaling; 
and  the  same  witness  adds,  that  since  the  above  conversation, 
Bo  wen  told  him  their  partnership  consisted  in  the  trade  of  coal. 
Another  witness  says,  that  at  the  time  they  were  engaged  in 
coaling,  the  hands  were  paid  out  of  Champion's  store,  and  Bowen 
said  he  had  a  mind  to  go  into  partnership  with  Champion,  to 
share  in  the  profits  he  made  out  of  the  hands.  This  is  all  the 
witness  heard  on  the  subject ;  he  no  where  pretends  that  they 
actually  did  go  into  partnership.  At  another  time,  when  engaged 
in  coaling,  a  witness  was  employed  to  run  out  the  land,  and  he 
understood  from  the  conversation  of  Bowen  and  Champion,  that 
they  were  in  partnership  in  cutting  and  coaling :  and  he  adds,  I 
thought  they  were  in  partnership  in  the  store,  because  the  hands 
were  paid  out  of  the  store.  After  Champion's  failure,  this  wit- 
ness asked  Bowen  how  Champion  could  fail  and  he  not,  as  they 
were  partners  ?  He  answered,  they  never  were  in  partnership 
in  any  other  way  than  in  the  coaling.  He  distinctly  says,  that 
in  his  conversations  with  Bowen  and  Champion,  the  word 
"  store  "  was  not  mentioned. 

The  main  evidence  to  make  out  a  partnership  between  Bowen 
and  Champion,  arc  the  declarations  of  Champion ;  and  if  such 
evidence  could  satisfy  my  mind,  the  case  would  be  clearlr 
proved.  He  said  they  were  partners,  over  and  over  again :  but 
I  consider  it  illegal  evidence.  Even  if  the  rule  be  admitted,  that 
6tic-.h  evidence  is  competent  to  establish  the  fact  of  a  partnership, 
af  Ler  a  priina  facie  case  of  partnership  is  made,  still,  in  the  present 
case,  no  such  prima  facie  case  is  made  out.  The  whole  evi- 


56  CASES  IN  CHANCERY, 

Flanigan  v.  Champion  and  Bowen . 

dence  is  of  the  slightest  character.  The  fact  of  the  parties  being 
concerned  partially  in  the  coaling  of  the  two  tracts  of  timber 
may  and  probably  has  given  rise  to  much  of  the  evidence  on 
this  subject.  If  there  -was  in  reality  a  general  partnership  exist- 
isting  between  these  men,  it  would  seem  very  strange  that  no  man, 
not  even  the  clerks  in  the  store,  who  have  been  examined,  knew 
any  thing  about  it. 

The  evidence,  therefore,  in  my  judgment,  fails  to  establish  a 
general  partnership  between  the  defendants. 

As  to  the  judgment  of  Bowen  against  Champion,  which  is  at- 
tempted to  be  impeached,  it  rests  upon  the  answer.  ISTo  e  vidence 
is  offered  changing  the  case  there  made.  The  answer  shows  a 
sufficient  consideration,  and  there  is  no  ground  for  disturbing  the 
validity  of  the  judgement. 

Much  is  said  in  the  case  about  Bowcn's  recommending  Cham- 
pion to  the  complainant  and  others  as  a  responsible  man,  and 
there  is  too  much  reason  to  believe,  from  all  his  conduct  with 
Champion  throughout  this  transaction,  that  his  countenance  has 
enabled  Champion  to  impose  more  largely  on  confiding  creditors, 
The  credit,  however,  was  given  by  the  complainant  to  Cham- 
pion himself.  At  the  time  of  selling  him  the  goods  he  entertain- 
ed no  opinion  that  he  had  any  partner. 

It  is  charged  in  the  bill,  also,  that  there  was  a  contrivance 
between  Bowen  and  Champion,  by  which  it  was  fraudulently 
agreed  between  them,  that  Champion  should  buy  the  goods,  and 
Bowen  stand  by  with  his  judgment  and  protect  his  property  un- 
til he  could  defraud  his  creditors.  This  is  denied  by  the  answer, 
and  in  no  way  sustained  by  the  evidence. 

It  is  further  cliarged,  that  Bowen  acted  fraudulently  in  enter- 
ing up  a  judgment,  after  promising  to  share  the  same  fate  with 
the  other  creditors.  I  cannot  consider  him  bound  by  a  general 
declaration  of  this  kind,  especially  as  the  other  creditors  were  in 
no  way  bound  to  him.  But  inasmuch  as  his  promise  went  no 
farther  than  to  abide  by  any  arrangement  which  nil  the  creditors 
should  make,  I  cannot  hold  him  in  any  way  obligated,  after  one 
of  those  creditors,  the  chairman  of  the  meeting,  (Collin  Cooper,) 


APRIL  TEEM,  1838.  57 

FJanigau  v.  Champion  and  Bowen. 

declined  coming  into  any  arrangement,  and  sought  his  remedy 
in  his  own  way. 

While,  therefore,  I  have  to  regret  the  loss  which  the  complain- 
ant, and  other  creditors,  have  sustained  at  the  hands  of  Federal 
Champion,  and  would  be  very  far  from  approving  the  course  of 
conduct  pursued  by  Jesse  H.  Bowen  in  relation  to  this  whole  af- 
fair, there  is  no  such  case  made  out  as  will  enable  me  to  charge 
him  as  a  partner  of  Federal  Champion,  or  to  disturb  his  judg- 
ment. 

The  bill,  therefore,  as  to  Jesse  II.  Bowen,  must  be  dismissed 
with  costs. 


WILLIAM  P.  ROBESON  and  JOHN  P.  B.  MAXWELL  v. 
DANIEL  PITTENGER. 

This  conrt,  if  a  proper  case  be  discribed,  will  interfere  by  injunction  to  pre- 
vent the  obstruction  of  ancient  lights. 

Chancery  will  interfere  by  injunction  to  prevent  or  remove  a  private  nuisance, 
where  the  nuisance  has  been  erected  to  the  prejudice  or  annoyance  of  a 
right  which  the  other  party  had  long  previously  enjoyed. 

It  must  be  a  strong  and  mischievous  case,  of  pressing  necessity,  or  the  right 
must  have  been  previously  established  at  law,  to  entitle  the  party  to  call  to 
his  aid  the  jurisdiction  of  this  court 

Where  ancient  lights  have  existed  for  upwards  of  twenty  years,  undisturbed, 
the  owner  of  an  adjoining  lot  has  no  right  to  obstruct  them  ;  and  particu- 
larly BO,  if  the  adjoining  lot  was  owned  by  the  person  who  built  the  house 
containing  the  ancient  lights,  at  the  time  of  builuing,  and  was  subsequently 
sold  by  him. 

Whether  this  conrt  will  interfere  by  injunction  to  prevent  the  nuisance,  or 
leave  the  party  to  establish  his  right  at  law,  must  depend  on  the  partic- 
ular circumstances  of  each  case. 

Tms  bill  was  for  an  injunction  to  restrain  the  defendant  from 
stopping  the  plaintiff's  lights,  by  the  erection  of  a  building  on  an 
adjoining  lot.  On  the  17th  of  January,  1838,  the  complainants 
gave  written  notice  to  the  defendant  of  their  intention  to  apply 
tor  an  injunction  on  the  31st  of  January ;  but  the  bill  was  filed 
0 


58  CASES  IN  CHANCERY, 

Robeson  and  Maxwell  v.  Pittenger. 

and  the  injunction  issued  on  the  25th  of  that  month,  previous  to 
the  time  specified  in  the  notice.  The  material  facts  contained  in 
the  bill,  were,  that  the  complainants  were  the  owners  of  a  lot  in 
the  town  of  Belvidere,  Warren  county,  adjoining  a  lot  of  the  de- 
fendant. The  lots  (marked  in  the  town  plot  as  lots  "No.  9  and 
No.  10)  were  each  fifty-two  feet  in  front  on  "Water-street,  and 
above  one  hundred  feet  deep.  In  the  year  1797,  one  Benjamin 
Sexton  became  seized  of  both  lots ;  and  about  the  year  1801  or 
1S02,  he  erected  a  dwelling-house  upon  one  of  the  lots,  marked 
No.  10,  where  he  continued  to  reside  until  the  day  of  his  death, 
which  occured  in  180G.  This  house  (now  the  property  of  the 
complainant)  was  built  immediately  on  the  line  of  the  defen- 
dant's lot,  marked  No.  9,  and  had  six  windows,  besides  two  cel- 
lar windows,  which  opened  upon  and  received  light  and  air  from 
lot  No.  9,  and  which  had  remained  open  and  unobstructed  from 
the  erection  of  the  house  until  the  filing  of  the  bill,  a  period  of 
more  than  thirty  years. 

Benjamin  Sexton  having  died  intestate,  both  the  lots  descended 
to  his  children,  who  remained  seized  as  tenants  in  common,  until 
the  28th  day  of  April,  1828,  when  two  of  the  heirs  joined  in  a 
conveyance  of  lot  No.  9  to  Thomas  P.  Sexton,  who  was  also  an 
lieir.  Upon  this  lot,  at  the  time  of  the  deed  to  Thomas  P.  Sex- 
ton, there  stood  a  cabinet-maker's  shop,  forty  feet  back  from  the 
street,  and  the  front  of  it  eighteen  feet  from  the  nearest  corner 
of  the  complainants'  dwelling-house ;  which  shop  was  afterwards 
converted  by  Sexton  into  a  dwelling-house.  Thomas  P.  Sexton 
remained  the  owner  of  lot  No.  9,  until  the  20th  day  of  January, 
1831,  when  ho  sold  and  conveyed  it  to  one  Barnet  Matthews  ; 
who,  by  deed  dated  the  31st  day  of  March,  1835,  conveyed  it  to 
Hugh  II.  Abernethy,  by  whom  it  was  conveyed  to  the  defendant 
on  the  2Gth  day  of  March,  183G. 

On  the  14th  day  of  March,  1829,  lot  No.  10  was  conveyed  by 
all  the  heirs  of  the  said  Benjamin  Sexton,  to  Jolnn  Smith  ;  by 
whom  it  was  conveyed  to  the  complainants,  by  deed  dated  the 
1st  day  of  May,  1834. 

The  bill  further  charges,  that  Pittenger,  the  defendant,  who 


APEIL  TERM,  1838.  59 

liobcson  and  Maxwell  v.  Pittenger. 

purchased  lot  No.  9  with  a  full  knowledge  of  its  situation,  had 
lately  commenced  digging,  and  was  then  engaged  in  laying  the 
foundation  of  a  building  immediately  adjoining  the  lot  No.  10 ; 
and  that  he  purposed  erecting  a  building  immediately  adjoining, 
or  so  close  to  the  complainants'  dwelling-house,  as  to  impede  and 
stop  the  ancient  lights  of  at  least  three  windows  in  the  dwelling- 
house,  and  one  cellar  window  under  the  same,  and  that  the  de- 
fendant threatened  to  obstruct  the  others  also. 

The  defendant,  without  answering  the  bill,  gave  notice  of  a 
motion  to  dissolve  the  injunction,  accompanied  by  a  copy  of  the 
defendant's  affidavit,  intended  to  be  used  on  the  hearing.  The 
affidavit  did  not  materially  vary  the  case  made  by  the  bill,  and 
disclosed  no  new  fact,  except  that  he  was  about  to  erect  his 
building  about  three  feet  from  the  complainants'  dwelling,  and 
not  immediately  adjoining  it. 

The  case  was  submitted  to  the  chancellor  on  the  motion  to 
dissolve  the  injunction,  upon  the  written  briefs  of  counsel 

/  II.  Williamson,  in  support  of  the  motion. 

1.  The  general  principle  is  unquestionable,  that  every  man 
has  a  right  to  build  upon  his  own  land,  though  he  thereby  stops 
the  lights  of  others  house.     1  Ventris,  239,  Cox.  v.  MattJiewa  / 

1  Lev.  122 ;  3  EL  Com.  217 ;    10  Eng.  C.  L.  R.  102,  Little- 
dale,  J. 

2.  Although  twenty  years1  adverse  enjoyment  of  lights  ^pre- 
sumptive evidence  of  a  grant,  yet  there  can  be  no  such  presump- 
tion from  length  of  time,  unless  the  lights  have  been  enjoyed  ad- 
versely to  the  rights  of  others ;  and  as  there  can  be  no  adverse 
enjoyment  whilst  the  title  to  the  house  and  to  the  contiguous 
ground  continues  vested  in  the  same  person,  no  grant  in  such 

4  a  case  can  be  presumed.     2  Saund.  Rep,  1756  ;  11  East,  373 ; 

2  Swanston,  340-1 ;  6  Eng.  Com.  Law  Rep.  523,  Barker  v. 
Richardson  ;  10  Eng.  Com.  Law  Rep.  102,  Littledale,  J. 

3.  If  a  man  builds  a  house,  and  afterwards  sells  it,  neither 
the  vendor,  nor  any  person  claiming  under  him,  can  build  on 
the  adjacent  land  so  as  to  stop  the  lights  of  the  first  house, 


CO  CASES  IN  CHANCERY, 

Kobe?oQ  and  Maxwell  v.  Pittenger. 

for  that  would  be  to  derogate  from  his  own  grant.     1  Lev.  122 ; 
C  Modern,  116  ;  T.  Raym.  87. 

4.  In  the  present  case,  the  obstruction  and  injury  do  not  appear 
by  the  bill  to  be  of  such  a  character  as  to  warrant  the  interference 
of  this  court  by  injunction ;  and  especially  before  a  trial  at  law, 
and  before  answer.     1  Dickens,  164—5,  Fishmongers  Cowp. 
&c.;  16   Vesey,  338,  Atty.  Gen.  v.  Nicholl;  2  Swanston,  233 
to  237  ;  Eden  on  Injunctions,  234 ;  12  Eng.  Com.  Law  Hep. 
218;  1  CUtty' s  Gen.  Prac.  727-& 

5.  And  the  court  will  not,  even  in  a  plain  case  of  nuisance, 
grant  an  injunction  without  notice,  unless  the  danger  is  pressing, 
and  will  not  admit  of  delay.     2  Vesey,  sen.  453.    In  this  case, 
the  complainants  gave  notice  of  an  intended  application  for  the 
injunction,  but  before  that  day  obtained  the  injunction  on  an 
exparte  application. 

6.  The  affidavit  of  the  defendant  is  competent  evidence.    If 
the  argument  had  come  on  upon  the  notice  which  was  given,  it 
appears  from  all  the  books  that  it  is  the  constant  practice  to  re- 
ceive affidavits  on  the  part  of  the  defendant  on  answer,  to  show 
on  what  the  injunction  was  obtained ;  and  if  it  would  have  been 
received  then,  I  can  perceive  no  reason  why  it  should  not  be  re- 
ceived now,  as  no  answer  lias  been  filed  ;  and  why  the  parties 
are  not  to  be  considered  as  standing  before  the  court  precisely  in 
the  same  situation  as  if  they  were  now  before  the  court  on  the 
application  for  the  injunction. 

JI.  W.  Green,  contra. 

1.  The  bill  discloses  a  clear  case  of  nuisance.  First,  Stopping 
ancient  lights,  is  an  actionable  nuisance.  3  B.  C.  216  ;  9  Co. 
57-8  ;  Com.  Dig.  "  Action  on  the  Case  for  Nuisance,"  A. 

Second,  When,  the  owner  of  an  entire  lot  builds  two  or  more 
houses  upon  it,  and  af  terwards  separates  the  ownership  or  occu- 
pation, each  party  talcing  a  part  is  bound  not  to  effect  the  exist- 
ing Btate  of  things  ;  and  in  that  case,  six  years'  enjoyment,  or 
less,  will  give  as  perfect  a  right  to  the  free  use  of  a  modern  win- 
dow, as  twenty  years'  adverse  enjoyment  would  create.  1  Ven- 


APRIL  TERM,  1838.  »     61 

Eobeson  and  Maxwell  v.  Pittengcr. 

tris,  237 ;  1  Sid.  167,  227 ;  Raym.  87 ;  1  Lev.  122 ;  C  Hod. 
Cases,  116;  1  Keble,  553;  1  Chittijs  Prac.  207;  Com.  Dig. 
Action  on  tfte  Case  for  Nuisance. A:;  1  Price,  27 ;  21  Eng. 
Com.  Law  Rep.  373 ;  22  lUd,  338,  340 ;  2  Saund.  114,  n.; 
1  Saund.  PI.  and  E.  81-2;  2  Dane's  Alridg.  716,  «ee.  17; 
12  Mass,  Rep.  157, 160. 

2.  The  proper  and  appropriate  remedy  is  by  injunction. 
C  kitty's  Prac.  208,  383,  727,  an<2  note  n.;  2  Russell,  121 ; 

16  F<?«?y,  338. 

3.  No  notice  of  application  for  the  injunction  was  necessary. 
The  practice  is  otherwise.      2  Russell,  121 ;  16  Vescy,  338 ; 
4  «fc/m.  <7A.  55. 

4.  Admitting  notice  to  be  necessary,  the  application  for  an  in- 
junction is  addrer  .i  to  the  sound  discretion  of  the  court,  and  if 
allowed  in  a  proper  case,  it  ought  not  to  be  dissolved,  merely  be- 
caiise  it  was  granted  without  notice. 

5.  The  affidavit  of  the  defendant  cannot  be  read.     The  rule 
is,  that  the  defendant's  affidavit  cannot  be  read,  unless  the  party 
•was  entitled  to  notice. 

THE  CHANCELLOK.  The  object  of  this  bill  is  to  restrain  the 
defendant  from  obstructing  the  light  and  air  of  a  building  be- 
longing to  the  complainants.  When  the  bill  was  presented,  I 
granted  the  injunction  with  much  reluctance,  without  notice; 
and  I  did  so  from  the  pressing  character  of  the  case,  as  the  de- 
fendant was  actually  at  work  erecting  the  very  obstmction 
complained  of.  I  am  now  furnished  with  the  briefs  of  the  counsel 
of  the  respective  parties,  on  a  motion  to  dissolve  the  injunction 
upon  the  case  made  by  the  bill,  and  shall  consider  the  same  with- 
out prejudice,  as  if  the  propriety  of  the  interference  of  the  court 
was  now  for  the  first  time  considered.  I  am  not  aware  that  this 
question  has  ever  been  decided  in  New-Jersey,  and  it  has  caused 
mo  sonic  anxiety  to  determine,  not  so  much  what  views  have 
been  taken  byother  judges  and  in  other  countries,  of  the  question, 
but  what  should  be  the  course  of  decision  in  this  state,  and  par- 
ticularly in  a  country  under  a  rapidly  increasing  state  of  improve- 


C2  CASES  IN  CHANCERY, 

Robeson  and  Maxwell  v.  Pittenger. 

ment.  It  would  seem  unreasonable,  that  in  those  places  where 
land  is  cheap,  and  the  country  thinly  settled,  a  party,  after  be- 
ing permitted  to  build  his  house  and  place  his  windows  on  the 
side  adjoining  the  open  field  of  another  man,  and  especially  after 
so  long  a  possession  as  to  presume  a  grant  for  that  purpose,  should 
have  them  obstructed  by  the  erection  of  a  wall  or  another  build- 
ing, when  perhaps  a  little  accommodation,  by  placing  tho  new 
building  a  few  feet  further  off,  might  work  no  injury  to  any  body ; 
and  yet  in  populous  cities,  where  land  is  very  valuable,  and  it  is 
the  constant  practice  to  place  buildings  side  by  side,  the  enforce- 
ment of  the  same  rule  might  work  great  inconvenience  and  in- 
justice. The  difficulty,  therefore,  is  to  lay  down  one  rule  for  all 
cases.  Nor  will  it  do  to  leave  all  parties  to  their  remedy  at  law. 
That  would  be  shutting  up  the  doors  of  a  court  of  equity,  when 
the  exercise  of  its  legitimate  powers  is  most  needed.  Cases 
might  arise  where  damages  would  be  no  adequate  compensation 
for  the  injury  sustained,  and  the  party  unable  to  respond  iu 
damages  at  all. 

The  cases  in  the  English  courts  are  numerous,  in  which  dam- 
ages at  law  have  been  recovered  for  obstructing  lights,  and  where 
injunctions  have  been  issued  to  prevent  such  obstructions.  The 
law  is  there  well  settled,  and  of  long  standing.  In  1  Levin? 
Hep.  122,  the  case  of  Palmer  v.  Fletcher,  there  is  an  early  and 
important  decision  on  this  subject.  This  was  a  case  at  law.  A 
man  built  a  house  on  his  own  lands,  and  then  sold  the  house  to 
one  man,  and  the  land  adjoining  to  another,  who  obstructed  the 
windows  of  the  house  by  piles  of  timber.  This  house  had  been 
recently  built,  yet  the  action  was  sustained.  The  judges  differed 
as  to  what  would  have  been  the  result  had  the  man  sold  the  va- 
cant lot  first,  seeing  the  building  had  been  recently  erected ;  but 
all  agreed,  that  if  a  stranger  had  owned  the  adjoining  lands,  he 
might  obstnict  the  lights  of  a  newly  erected  building,  but  not  of 
an  ancient  building  so  that  he  has  gained  a  right  in  the  lights  by 
prescription. 

In  1  Comyrts  Digest,  title,  "Action  on  the  Case  for  a  Nui- 
sance" A.,  the  cases  arc  cited  in  which  actions  on  tho  case  fora 


APRIL  TERM,  1838.  63 

Eobeson  and  Maxwell  v.  Pittenger. 

nuisance  have  been  allowed.  If  a  man  erect  a  house  or  mill  to 
the  nuisance  of  another,  every  occupier  afterwards  is  subject  to 
an  action  for  the  nuisance. 

In  the  caso  of  I?osewettv.  Pryor,  G  Modern,  110,  the  question 
was,  whether  in  a  declaration  for  stopping  the  plaintiff's  lights, 
it  was  necessary  to  state  the  lights  and  the  messuage  as  being 
ancient,  and  it  was  held  not  to  be  necessary.  In  that  case,  Holt, 
chief  justice,  eays :  "  If  a  man  have  a  vacent  piece  of  ground,  and 
build  thcrcupor ,  and  that  house  has  very  good  lights,  and  ho 
lets  this  house  to  another,  and  after  he  builds  upon  a  contiguous 
piece  of  ground,  or  lets  the  ground  contiguous  to  another,  who 
builds  thereupon  to  the  nuisance  of  the  lights  of  the  first  houso, 
the  lessees  of  the  first  house  shall  have  an  action  upon  the  case 
against  such  builder,  for  the  first  house  was  granted  to  him  with 
all  the  casements  and  the  lights  then  belonging  to  it." 

This  general  principle  is  also  stated  in  3  Bl.  Com.  217,  where 
it  is  declared  to  be  essential  to  the  maintenance  of  the  action, 
that  the  windows  be  ancient.  The  English  cases  are  uniform 
on  this  subject ;  and  chancellor  Kent,  in  3  Kenfs  Com.  445, 
declares  in  general  terms,  "  according  to  the  English  law,  the 
owner  of  a  house  will  be  restrained  by  injunction,  and  he  will  bo 
liable  to  an  action  on  the  case,  if  he  makes  any  erections  or  im- 
provements, so  as  to  obstruct  the  ancient  lights  of  an  adjoining 
house." 

In  our  own  country,  too,  the  same  doctrines  have  been  main- 
tained;  and  I  do  not  perceive  that  chancellor  Kent,  in  his  Com- 
mentaries above  referred  to,  denies  any  where  that  the  samo 
mles  of  law  on  this  subject  apply  in  this  country,  except  in  a 
note,  where  he  declares,  that  this  common  law  prescription  does 
not  reasonably  or  equitably  apply  to  buildings  on  narrow  lots  in 
the  rapidly  growing  cities  in  this  country,  and  upon  the  ground, 
that  such  was  not  the  presumed  intention  of  the  owners  of  such 
lots.  From  all  he  says,  I  infer  that  he  recognized  the  general 
principles  before  stated  as  in  force  in  this  country,  but  exempts  tho 
caso  of  city  lots,  from  the  necessity  and  reason  of  the  thing,  us 
necessary  for  their  advancement  and  continued  improvement. 


61  CASES  IN  CHANCERY, 

Ilobeson  and  Maxwell  v.  Pittenger. 

The  case  of  Story  v.  Odin,  in  12  Mass.  157,  is  a  very  clear 
and  plain  decision  in  our  own  courts.  The' property  was  situated 
in  the  town  of  Boston.  The  building  was  purchased  of  the 
town  in  1795,  and  stood  adjoining  other  lands  of  the  town,  with 
lights  looking  out  directly  upon  this  vacant  land.  In  1812,  the 
town  sold  this  vacant  lot,  and  the  purchaser  built  directly  ad- 
joining the  plaintiffs  building,  and  obstructed  his  lights.  The 
court  decided,  that  as  the  purchaser  of  the  first  building  bought 
without  reserving  to  the  grantors  any  right  to  build  on  the  ad- 
joining ground  so  as  to  interfere  with  his  lights,  they  could  not, 
nor  could  their  grantees,  build  so  as  to  interfere  with  this  right. 

As  to  the  proper  cases  for  the  interference  of  this  court  to  pre- 
vent private  nuisance,  the  true  rule,  as  it  appears  to  me,  is  laid 
down  in  the  case  of  Van  Bergen  v.  Van  Bergen^  in  3  John  Ch. 
Rep.  287.  The  chancellor  says:  " The  cases  in  which  chance- 
ry has  interfered  by  injunction  to  prevent  or  remove  a  private 
nuisance,  are  those  in  which  the  nuisance  has  been  erected  to  the 
prejudice  or  annoyance  of  a  right  which  the  other  party  had 
long  previously  enjoyed.  It  must  be  a  strong  and  mischeivous 
case  of  pressing  necessity,  or  the  right  must  have  been  previously 
established  at  law,  to  entitle  the  party  to  call  to  his  aid  the 
jurisdiction  of  this  court." 

From  a  careful  examination  of  the  cases,  and  the  principles 
on  which  they  are  decided,  I  have  come  to  the  conclusion,  that 
the  same  rules  which  have  been  established  in  the  English  courts, 
and  in  other  states  of  the  union,  upon  this  subject,  apply  with 
the  same  force  to  us,  and  that  there  is  nothing  in  our  condition 
which  can  prevent  their  wholesome  application  :  that,  as  a 
general  rule,  in  a  case  of  ancient  lights,  where  they  have  existed 
for  upwards  of  twenty  years  undisturbed,  the  owner  of  the  ad- 
joining lot  has  no  right  to  obstruct  those  lights,  and  particularly 
60,  if  the  adjoining  lot  was  owned  by  the  man  who  built  the 
house  at  the  time,  and  subsequently  sold  by  him:  and  that, 
whether  this  court  will  interfere-  by  injunction,  or  leave  the 
party  to  establish  his  right  at  law,  must  depend  on  the  particu- 
lar circumstances  of  cacli  case. 


APIUL  TKKM,  1838.  65 

Robes  rn  and  Maxwell  v.  Pittenger. 

It  remains  to  be  considered,  what  is  the  case  of  the  present 
complainants,  and  whether  the  injunction  should  be  continued 
or  not 

The  property  is  situated  in  Belvidere,  in  the  county  of  "War- 
ren, in  this  state,  and  was  owned  in  fee,  and  possessed  (as  well 
the  lot  on  which  the  house  is  built,  as  the  adjoining  one  on  which 
the  obstruction  is  about  to  be  erected)  as  far  back  as  the  year  1797, 
by  one  Benjamin  Sexton.  The  premises  consisted  of  two  lots  num- 
bered 9  and  10,  and  adjoined  each  other.  Sexton  owning  both 
these  lots,  which  were  each  fifty-two  feet  in  front  and  rising  one 
hundred  feet  deep,  in  the  year  1801  or  1802  erected  the  house 
in  question,  on  lot  No.  10,  for  his  own  residence,  and  placed  the 
same  on  the  line  between  said  lots  Nos.  9  and  10,  and  built  on 
the  end  towards  lot  No.  9,  six  windows  besides  two  in  the  cellar. 
Theso  windows  have  continued,  unmolested,  to  receive  light  and 
air  from  across  this  lot  No.  9,  until  the  recent  attempt  of  the  de- 
fendant to  build  his  wall  for  a  new  house  directly  against  the 
same.  Benjamin  Sexton  died  intestate,  in  the  year  180G  ;  and 
liis  heirs  at  law  sold  lot  No.  10,  with  the  aforesaid  house,  on  the= 
14th  of  March,  1829,  to  one  Smith,  who  afterwards  sold  tho 
same  to  the  complainants.  Tho  lot  No.  9,  was  conveyed  by  two 
of  the  heirs  of  Benjamin  Sexton  to  a  third  heir,  on  the  28th  of 
April,  1828  ;  and  that  heir  a^ain  conveyed  the  same,  on  the  20tU 
of  January,  1831,  to  one  Matthews;  which  lot  has  since  bcon 
conveyed  to,  and  is  now  the  property  of,  the  defendant.  On  lot 
No.  9  there  was  also  a  building,  standing  back  from  the  street, 
about  forty  feet,  and  tho  front  about  eighteen  feet  from  the  near-- 
est  corner  of  the  dwelling-house  on  lot  No.  10. 

Under  these  circumstances  the  defendant  has  commenced! 
building  the  foundation  of  a  house  or  shop,  directly  adjoining  the- 
house  on  lot  No.  10,  and  so  as  to  shut  up  tho  windows  of  that 
house.  lie  is  injoined  by  this  court  from  so  doing,  and  the  ques*- 
tion  is,  whether  that  injunction  should  be  dissolved. 

I  am  very  clear  tho  injunction  ought  not  to  be  dissolved,  and 
that  upon  all  the  authorities  cited.     The  case  is  a  very  strong 
one.    The  builder  of  this  house  owned  loth  lots  at  tho  time  of 
10 


66  CASES  IK  CHANCERY, 

Kobe  son  and  Maxwell  v.  Pittenger. 

erecting  the  building.  The  lights  are  ancient,  having  continued 
unmolested  for  thirty-five  years.  Lot  No.  10,  on  which  the 
house  stands,  passed  out  of  the  hands  of  the  heirs  at  law  of  the 
original  owner  first  j  and  there  is  no  pressing  necessity  for  this 
interference  with  the  established  rights  of  the  complainants. 

I  am,  therefore,  of  opinion,  that  the  injunction,  was  rightly  is- 
sued in  this  case,  and  ought  not  to  be  disturbed. 
Motion  denied. 

CITED  in  TompTcins  v.  Harwood,  4  Zab.  427  /  MOT.  &  Es.  E.  JR.  Co.  r. 
Piudden,  5  C.  E.  Gr.  539 ;  Carlisle  v.  Cooper,  6.  0.  K  Cfr.  581. 


PHEBE  B.  GOBLE  v.  ISAAC  ANDEUSS  and  others. 

A  complainant  in  the  suit  for  the  mere  purpose  of  recovering  a  13'acy,  is  not 
bound  to  make  tho  representatives  of  a  deceased  co-executor,  parties,  wai  n 
he  expressly  charges  that  all  the  nssetn  of  the  testator  aro  in  the  hands  c 
tho  surviving  executor  ;  but  stich  representatives  are  proper  parties  when- 
erer  ;  uch  co-executor  is  charged  wit'i  having  assets,  or  when  fraud  or  col- 
lusi  n  is  charged  between  the  executors,  or  in  a  case  of  insolve  cy. 

Upon  the  s.ima  principle,  debtors  to  the  testator  nv\y  be  nude  parties,  to  reach 
assets  in  their  hands. 

This  is  a  privilege,  given  to  a  complainant  in  the  court  f  chancery,  to  go 
beyond  the  par.y  legally  bound,  to  reach  assets  iu  the  hands  of  other  per- 
sons ont  of  which  his  debt  ought  to  be  paid.  But  if  such  persons  have  no 
assets,  and  there  be  no  other  special  ground  assigned,  they  are  n  t  proper 
parties. 

A  demurrer  to  a  bill  in  equity,  admits  every  charge  in  the  bill  which  is  veil 
pleaded. 

Where  a  bill  filed  against  a  surviving  executor  for  a  legacy,  charges  thai  the 
executors  rendered  a  joint  account  to  the  orphan's  court  for  final  settlement, 
which  was  allowed,  and  also  charges  that  all  the  assets  tre  in  the  hands  of 
the  surviving  executor,  the  latter  charge  is  material  and  well  pleaded. 

Tho  decree  of  the  orphan's  court  upon  a  joint  account  rendered  by  executors 
admitting  the  account  to  settlement  does  not  change  the  joint  liability  of 
the  executors.  They  are  jointly  liable  before  us  well  as  after  the  decree. 

A  »cttlement  in  the  orphan's  court  by  two  executors,  and  a  decree  establishing 
tho  amount  iu  their  hands,  are  not  conclusive  that  each  executor,  at  the 
time,  had  half  of  the  estate. 

Bach  decree  only  ascertiins  the  amount  due,  leaving  the  liability  the  same  as 


APJIIL  TERM,  1838.  67 


Goble  v.  AndniBs  et  al. 


before,  joint,  and  leaving  wholly  undetermined  and  open  as  between  the 
parti  s  themselves,  what  part  of  the  estate  each  executor  had. 


THE  original  bill  in  this  cause,  filed  on  the  17th  day  of  Octo- 
ber, 1835,  charges,  that  the  complainant  is  the  widow  of  Luther 
Goble,  and  the  daughter  of  Caleb  Ilakted,  deceased.  That  the 
said  Caleb  Halsted,  by  his  last  will  and  testament,  duly  made 
and  published,  after  directing  that  all  his  estate,  real  and  per- 
onal,  excepting  certain  chattels  thereby  specifically  bequeathed, 
should  be  sold  by  his  executors,  and  his  debts,  funeral  expenses, 
and  certain  legacies  contained  in  the  will  paid  thereout,  be- 
queathed and  directed  that  all  the  rest  and  residue  of  his  estate, 
after  payment  of  debts,  funeral  charges  and  legacies,  should  be 
paid  and  distributed  by  his  executors  as  follows,  viz  :  to  his  son, 
Caleb  S.  Halsted,  five  hundred  dollars,  to  be  at  his  own  disposal ; 
and  the  residue  thereof  to  be  divided  into  three  equal  parts ;  one 
third  thereof  he  bequeathed  to  his  executors,  and  the  survivor  of 
them,  to  be  placed  at  interest,  and  to  pay  over  the  interest  and 
profits  thereof  to  Margaret  Halsted,  the  wife  of  his  son  Caleb  S. 
Halsted,  during  her  natural  life,  for  the  support  of  herself  and 
family ;  and  after  the  decease  of  the  said  Margaret,  to  the  said 
Caleb  S.  Halsted  during  his  natural  life ;  and  after  his  death,  the 
principal  and  interest  to  the  children  of  the  said  Caleb  S.  Halsted; 
and  the  remaining  two  thirds  of  the  said  residue,  he  gave  and 
bequeathed  to  his  two  daughters,  Mary  C.  Andruss,  the  wife  of 
Isaac  Andruss,  and  the  complainant ;  and  in  case  of  the  death 
of  either  of  his  said  daughters,  her  share  to  be  divided  among 
her  children.  The  will  further  recited,  that  the  testator  wa«« 
boona  as  surety  for  his  son,  Caleb  S.  Halsted,  for  the  payment 
of  certain  sums  of  money,  and  provided,  that  if  the  testator** 
estate  was  compelled  to  pay  the  same,  or  any  part  thereof,  the 
amount  so  paid  should  be  deducted,  first  from  the  legacy  of  five 
hundred  dollars  bequeathed  to  his  said  son,  and  the  balance,  u 
any,  from  the  residue  bequeathed  to  his  family.  The  testator 
appointed  his  nephew,  Job  S.  Halsted,  esquire,  and  his  two  son* 
in-law,  Luther  Goble  and  Isaac  Andruss,  his  executors — the  two 


CASES  IN  CHAKCERY, 


Goble  v.  Andruss  et  al. 


latter  of  whom  proved  the  will,  and  took  upon  themselves  the 
burthen  of  the  execution  thereof. 

The  bill  further  charges,  that  Luther  Goble  and  Isaac  Andruss. 
the  acting  executors,  made  sale  of  the  real  and  personal  estate, 
pursuant  to  the  will,  collected  the  debts  due  and  owing  to  the 
testator,  paid  the  debts  and  specific  legacies,  and  at  April  term. 
1832,  rendered  their  final  account  of  the  administration  of  the 
estate,  and  of  the  proceeds  of  the  sale  of  the  real  estate  of  the 
•aid  testator,  to  the  orphan's  court  of  the  county  of  Essex,  which 
was  by  a  decree  of  said  court  allowed  as  stated  and  audited  by 
the  surrogate.  That  by  the  said  settlement,  including  an  allow- 
ance of  seven  per  cent,  to  the  executors  for  commissions,  there 
remained  a  balance  in  the  hands  of  the  said  executors  or  of  one 
of  them,  of  eleven  hundred  and  four  dollars  and  ninety-f our 
cents.  That  Luther  Goble  took  very  little  part  in  the  settlement 
of  the  estate :  that  the  business  was  done  and  the  commissions 
received  by  Isaac  Andruss ;  and  that  the  whole  of  the  said  resi- 
due still  remains  in  his  hands. 

The  bill  further  charges,  that  there  was  paid  out  of  the  estate 
of  the  testator,  in  satisfaction  of  the  debts  of  his  son,  Caleb  S. 
Halsted,  divers  sums  of  money,  exceeding  in  amount  the  lega- 
cy of  five  hundred  dollars  bequeathed  to  him,  and  also  the  third 
part  of  the  residue  of  the  estate  bequeathed  for  the  benefit  of  his 
family ;  and  that  by  reason  thereof  tho  complainant,  and  her 
•ister  Mary  C.  Andruss,  became  entitled,  each,  to  a  moiety  of 
tho  said  residue  of  eleven  hundred  and  four  dollars  and  ninety- 
four  cents.  That  Luther  Goble,  the  husband  of  the  complain- 
ant, died  without  navine-  received  the  complainant's  share  of  the 
residue,  or  having  in  any  wise  reduced  tho  same  into  his  posses- 
aion.  That  tho  complainant  had  received  of  Isaac  Andruss  one 
hundred  and  forty  dollars  on  account  of  her  share  of  the  estate; 
and  that  the  balance  thereof,  with  interest,  remains  due  from  the 
•aid  Isaac  Andruss. 

The  bill  further  cnanres,  that  Caleb  S.  Ilalsted,  the  son  of  the 
testator,  died,  leaving  lour  children,  who  are  still  living,  and 
who,  together  with  the  saul  Isaac  Andrnss,  were  made  partiei 


APRIL  TERM,  1838.  69 

Gtoble  v,  AndruBs  et  til. 

defendants  to  the  bill.  The  bill  prays  that  the  said  Isaac  An- 
druss  may  be  decreed  to  pay  to  the  complainant,  five  hundred 
and  fifty-two  dollars  and  forty-seven  cents,  the  equal  half  part 
of  the  residue  of  the  said  estate,  as  ascertained  by  the  settlement 
and  decree  of  the  orphan's  court,  with  interest  thereon  from  the 
date  of  the  said  decree. 

To  this  bill  a  demurrer,  for  want  of  proper  parties,  was  filed 
by  Isaac  Andruss,  on  the  19th  of  January,  1836 ;  assigning  for 
causes  of  demurrer,  that  by  the  complainant's  own  showing  in 
the  bill,  the  personal  representatives  of  Luther  Goble,  and  also 
Mary  C.  Andruss,  are  necessary  parties  to  the  said  bilL 

On  the  4th  of  October,  1837,  the  complainant  having  obtained 
an  order  to  amend  the  bill  by  adding  new  parties,  filed  an 
amended  bill,  making  Mary  C.  Andruss  a  defendant,  together 
with  the  defendants  in  the  original  bilL  The  amended  bill  also 
charges,  that  the  sum  of  one  hundred  and  forty  dollars,  paid  by 
Isaac  Andruss  to  the  complainant,  was  received  by  her  in  the 
life-time  of  her  husband,  the  said  Luther  Goble. 

To  the  bill  so  amended  a  demurrer  was  filed  by  Isaac  Andruss 
on  the  20th  of  November,  1837,  assigning  for  cause  of  demurrer, 
that  it  appears  from  the  complainant's  own  showing  in  the  saul 
bill,  that  the  personal  representative  or  representatives  of  Luther 
Goble,  therein  named,  is  or  are  a  necessary  party  or  parties  to  t lie 
said  bill ;  inasmuch  as  it  appears  by  said  bill,  that  the  last  will 
and  testament  of  Caleb  Halsted,  deceased,  in  the  said  bill  sot 
forth  or  referred  to,  was  duly  proved  by  the  said  Luther  Goble 
and  the  said  Isaac  Andruss,  two  of  the  executors  therein  named, 
and  administration  of  the  estate  of  the  said  Caleb  Halsted,  the 
testator,  was  thereupon  granted  to  them ;  Job  S.  Halsted,  esquire, 
the  other  executor  therein  named,  having  neglected  and  declined 
to  prove  the  said  last  will  and  testament.  And  that  the  said 
Luther  Goble  and  Isaac  Andruss,  as  executors  of  the  last  will 
and  testament  of  the  said  Caleb  Halsted,  deceased,  made  sale 
and  conveyance  of  the  real  and  personal  estate  whereof  he  died 
seized  and  possessed ;  and  in  the  term  of  April,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  thirty-two,  the  final 


CASES  nr  CHANCERY, 


Goble  v.  Andruss  et  nl. 


account  of  the  said  acting  executors  of  the  administration  of  the 
estate  of  the  said  Caleb  Halsted,  deceased,  and  also  of  the  pro- 
ceeds of  the  real  estate  of  the  said  testator,  was  rendered  by  them 
to  the  orphan's  court  of  the  county  of  Essex,  and  the  same  was 
duly  audited  and  stated  by  the  surrogate  of  said  county  of  Essex, 
and  on  the  seventeenth  day  of  April,  in  the  year  aforesaid,  the 
said  account  was  duly  allowed  by  the  said  orphan's  court  as 
stated  and  audited  by  the  surrogate  ;  and  a  decree  of  the  said 
court  was  thereupon  made  accordingly.  And  inasmuch  also  as 
it  further  appears  by  said  bill,  that  the  residue  of  the  estate  of 
the  said  Caleb  Halsted,  deceased,  after  the  payment  of  his  debts, 
funeral  expenses,  certain  legacies  therein  mentioned,  and  the 
expenses  of  the  settlement  of  the  same,  including  commissions, 
amounted  to  the  sum  of  eleven  hundred  and  four  dollars  and 
ninety-four  cents,  part  whereof  is  claimed  by  the  said  complain- 
ant ;  and  that  the  said  Luther  Goble  was  then  the  husband  of 
the  said  complainant,  and  hath  since  died.  And  further,  that  it 
appears  by  the  complainant's  own  showing  in  the  said  bill,  that 
her  husband,  the  Kaid  Luther  Goble  in  his  life-time  reduced  into 
his  possession  that  part  of  the  residue  given  and  devised  to  the 
t  aid  complainant  ty  the  said  testator,  as  in  the  said  bill  is  alleged 
inasmuch  as  it  is  stated  in  the  said  bill  that  this  defendant  and  the 
said  Luther  Goble  as  executors  of  the  last  will  and  testament  of  the 
said  Caleb  Halsted,  deceased,  sold  and  conveyed  the  real  and 
personal  estate  of  the  said  testator,  and  rendered  their  account 
thereof  to  the  orphan's  court,  which  was  allowed  and  decreed  as 
in  the  said  bill  is  set  forth;  and  inasmuch,  also,  as  it  further 
appears  by  the  said  bill,  that  the  residue  of  said  estate  amounted 
t  )  the  sum  of  eleven  hundred  and  four  dollars  and  ninety-four 
cents,  the  one  half  of  which  the  said  complainant  claims  by  her 
said  bill. 

E.  Van  Arsdale,  for  defendant. 

All  persons  materially  interested  in  the  subject,  must  be  made 
parties,  KO  that  a  complete  decree  may  be  math  between  them. 
Mitfortft  PL  144,  163. 


APRIL  TEEM,  1838.  71 


Noble  v.  AndruKS  ct  al. 


Andruss  and  Goble,  the  co-executors,  having  rendered  a  joint 
account  to  the  orphan's  court,  have  become  jointly  liable  for  all 
demands  against  them.  IBy  the  decree  of  the  orphan's  court, 
their  liability  is  joint.  It  is  the  same  as  a  judgment  at  law  against 
them  both.  The  bill  charges  that  the  account  is  settled,  and 
claims  half  of  tho  balance  appearing  in  the  hands  of  the  execu- 
tors Ky  *be  decree  of  the  orphan's  court.  The  bill  contains  an 
allegation  that  the  whole  fund  is  in  the  hands  of  Andruss,  one 
of  the  executors.  That  allegation  is  in  the  face  of  the  decree  of 
the  orphan's  court,  and  is  improperly  introduced  into  the  bill. 
It  is  not  admitted  by  the  demurrer. 

A  demurrer  only  admits  facts  well  pleaded,  not  every  thing 
stated.  1  ModdocJc,  565  ;  3  WJieaton,  329 ;  1  Co.  Litt.  72 :  a  / 
1  East,  634;  Gould?  s  PL  461,  470. 

All  matters  antecedent  to  the  decree,  are  merged  in  the  decree. 
Rev.  L.  787,  sec.  32. 

The  party  is  bound  by  the  decree  of  the  orphan's  court,  and 
cannot  go  behind  it  to  see  which  executor  is  liable.  He  cannot  im- 
peach the  decree  collaterally.  7  John.  Ch.  148,  (Index)',  6  John. 
Ch.  239  ;1  Conn.  Rep.  7  ;  16  Johns.  55 ;  2  Mason,  267-8. 

The  defendant,  Andruss,  is  entitled  in  this  cause  to  have  the 
matters  settled  between  him  and  his  co-executor,  so  as  to  bind  all 
parties.  1  Leoinz,  235 ;  Garth.  225 ;  2  Yes.  sen,.  232 ;  2  Atk^ 
235;  3  Ibid,  406;  9  Mod.  299 ;  8  Cond.  Ch.  Rep.  487. 

The  receipt  of  complainant,  in  the  life-time  of  her  husband, 
for  one  hundred  and  forty  dollars,  was  in  fact  his  receipt.  2  Bl. 
Com.  433,  441 ;  2  Story's  Eq.  630 ;  1  Vern.  261 ;  5  Ves.  521. 

The  husband  having  once  had  the  money,  the  wife  cannot 
claim  it  17  Law  Library,  83. 

The  defendants  are  entitled  to  have  all  the  parties  before  the 
court,  to  have  the  case  settled  at  once.  They  claim  protection 
and  indemnity.  9  Ves.  101 ;  3  P.  W.  331. 

I.  II.  Williamson  and  A.  WJiitehead,  for  complainant,  contra. 

The  surviving  executor  of  the  testator  is  the  only  part}'  directly 

responsible  to  the  complainant     Tho  executors  of  Goblc  could 


72  CASES  IN  CHANCERY, 


Goble  v.  Andruss  et  al. 


not  be  made  parties  to  the  bill,  without  charging  them  with  hav- 
ing assets.  The  bill  charges  that  they  have  no  assets,  arid  no 
decree  can  be  had  against  them.  A  person  against  whom  no 
decree  can  be  had,  ought  not  to  be  made  a  party  to  the  bill. 

Persons  who  have  no  assets,  excepting  the  representatives  of 
the  deceased,  cannot  be  brought  before  the  court,  unless  under 
special  circumstances,  1  Yes.  sen.  105  ;  G  Ves  748-9. 

Except  under  special  circumstances,  a  legatee  can  have  no 
claim  against  one,  except  against  the  surviving  executors.  IIo 
alone  .has  a  right  to  the  assets,  and  must  pay  the  legacies.  Un- 
der this  bill  the  executors  of  Goble  could  not  be  made  parties. 
2  Atlt.  121 ;  3  AtL  604. 

The  decree  of  the  orphan's  court  ascertains  the  amount  in  tho 
hands  of  the  executors,  but  is  not  conclusive  that  each  executor 
has  a  moiety  of  the  assets  in  his  hands.  They  are  as  liable 
jointly  before  the  decree  as  after.  The  allegation  that  Andruss 
has  all  the  assets,  does  not  impeach  the  decree. 

Goble  never  reduced  the  legacy  into  possession  in  his  life-time. 
A  chose  in  action  must  be  reduced  into  possession  by  the  hus- 
hand  as  husband.  His  having  it  in  possession  as  executor  or 
trustee,  will  not  avail  to  prevent  its  surviving  to  the  wife.  12  Ves. 
497;  1  Wms.  on  Ewrs.  557;  Clancy,  132. 

E.  Van-Arsdale,  in  reply,  insisted  that  the  executors  of  Goblo 
arc  necessary  parties  to  the  bill : — 1.  Because  they  are  quasi  repre- 
sentatives of  Halsted.  2.  Because,  by  the  decree  of  the  orphan's 
court,  the  executors  of  Caleb  Halsted  are  jointly  bound.  3.  To 
assist  in  taking  the  account.  4.  To  bind  them  by  the  decreee. 
5.  To  have  a  settlement  between  the  co- executors.  6.  For  pro- 
tection and  indemnity.  , 

THE  CHANCELLOR.  The  complainant  is  a  daughter  and 
one  of  tho  residuary  legatees  of  doctor  Caleb  Halsted,  late  of. 
Union,  in  the  county  of  Essex.  The  bill  is  filed  against  Isaac 
Andruss,  surviving  executor  named  in  the  last  will  and  testament 
of  Caleb  Ilalsted,  to  recover  her  share  of  said  estate,  according 


APRIL  TEEM,  1838.  73 


Goble  v.  Andruss  ct  al. 


to  the  sum  established  by  a  decree  of  the  orphan's  court  of  the 
said  county  of  Essex.  The  testator  made  three  executors  to  his 
will ;  Job  S.  Ilalsted,  esquire,  of  the  county  of  Sussex,  Luther 
Goble,  who  was  the  husband  of  the  complainant,  and  Isaac  An- 
druss,  the  defendant.  The  two  last,  however,  alone  proved  tho 
will.  The  bill  charges,  that  Luther  Goble  and  Isaac  Andruss 
settled  their  accounts  in  the  orphan's  court  of  the  county  of  Es- 
sex, on  the  17th  day  of  April,  1832,  having  in  their  hands  tho 
net  amount  of  eleven  hundred  and  four  dollars  and  ninety-four 
cents  for  distribution  among  the  residuary  legatees,  one  half  of 
which  is  claimed  by  tho  complainant.  The  bill  is  not  for  a 
general  account,  but  to  recover  one  half  of  the  amount  ascer- 
tained by  tho  said  decree.  The  bill  then  goes  on  to  say,  that 
Luther  Goblo  took  only  a  f  onnal  part  in  the  settlement  of  tho 
testator's  estate,  and  that  all  the  monies  belonging  to  said  estate 
wero  received  by  Isaac  Andruss,  no  part  thereof  ever  having 
been  received  by  Luther  Goble.  That  Isaac  Andruss  retained 
all  tho  commissions  allowed  on  such  settlement,  and  was  in  truth 
and  in  fact  tho  active  man  in  tho  whole  business ;  and  that  tho 
residue  of  the  aforesaid  testator's  estate  13  now  in  tho  hands  of 
the  defendant,  Isaac  Andruss.  The  bill  further  states,  that  Lu- 
ther Goblo  is  dead,  never  having  received,  or  in  any  way  re- 
duced into  his  possession,  the  share  of  the  residue  of  said  estate 
sought  to  bo  recovered  by  the  complainant  in  tliis  action. 

To  this  bill  tho  defendant,  Isaac  Andruss,  has  put  in  a  de- 
murrer for  want  of  parties,  insisting  that  tho  personal  represen- 
tatives of  Luther  Goble  are  necessary  parties ;  and  whether  that 
bo  BO  or  not,  is  the  only  question  now  to  bo  considered. 

It  is  not  the  point  of  this  case,  whether  the  complainant  might 
not  havo  joined  such  representatives  as  parties  with  propriety, 
under  certain  charges,  of  their  having  assets  in  their  hands,  or 
the  insolvency  of  tho  present  defendant,  or  fraud  or  collusion  ; 
but  whether,  in  a  case  like  the  present,  whcro  the  surviving  0x7 
ecutor  is  charged  with  having  all  the  assets  of  the  estate  in  his 
hands,  and  no  pretence  of  insolvency  or  fraud,  the  complainant 
is  lound  to  make  the  representatives  of  a  co-executor  parties. 
11 


74:  CASES  IN  CHANCEEY, 

Goble  Y.  Amlruss  et  nl.  • 

Why  should  they  be  made  parties  ?  Is  not  the  surviving  execu- 
tor the  party  directly  liable  for  legacies,  both  at  law  and  in  this 
court  ?  Is  he  not  bound  and  entitled  to  possess  himself,  as  sur- 
vivor, of  all  the  assets  of  his  testator,  and  to  settle  up  and  pay 
all  claims  against  his  estate  3  If  so,  and  it  further  appear,  as  in 
the  present  case,  that  he  has  been  the  active  man,  and  has  now 
all  the  assets  in  his  hands,  I  can  see  no  good  reason  for  making 
the  representatives  of  his  co-executor  parties.  No  decree  could 
be  made  against  them  if  they  were  made  parties,  in  a  case  stand- 
ing as  the  present  one  does. 

The  principle  on  this  subject  I  take  to  be  this.  A  complain- 
ant in  a  suit  for  the  mere  purpose  of  recovering  a  legacy,  is  not 
bound  to  make  the  representatives  of  a  deceased  co-executor  par- 
ties, when  he  expressly  charges  that  all  the  assets  of  the  testator 
are  in  the  hands  of  the  surviving  executor :  but  such  repre- 
sentatives are  proper  parties,  whenever  such  co-executor  is  char- 
gad  with  having  assets,  or  when  fraud  or  collusion  is  charged 
between  the  executors,  or  in  a  case  of  insolvency ;  and  upon 
the  same  principle,  debtors  to  the  testator  may  be  made  parties, 
to  reach  assets  in  their  hands.  This  is  a  privilege  given  a  com- 
plainant in  this  court,  to  go  beyond  the  party  legally  bound  (who 
is  the  surviving  executor)  to  reach  assets  in  the  hands  of  other 
persons,  out  of  which  his  debt  ought  to  be  paid.  But  if  such 
persons  have  no  assets,  and  there  be  no  other  special  ground  as- 
signed, they  are  not  proper  parties,  Newland  v.  Champion, 
1  Vesey,  sen.  105 ;  Alsager  v.  Rowley,  G  Vescy  jun.  749 ; 
Glass  v.  Oxenham,  2  Atkyns,  121 ;  Foiherby  v.  Pate,  3  At- 
lyns,  G05 ;  9  Cond.  Eny.  Ch.  Rep.  438. 

I  am  furnished  by  the  counsel  of  the  defendant  with  two  cases 
which,  as  they  were  mainly  relied  on  in  support  of  the  demurrer, 
I  v.'ish  to  notice  particularly. 

The  first  is  the  case  of  Williams  v.  Williams,  in  9  Jfodern, 
299.  That  was  a  suit  for  legacies  to  the  children  of  the  testator, 
vliich  they  claimed  to  have  paid  first  out  of  the  personal  estate, 
and  if  tlitit  was  not  sufficient,  out  of  the  real  estate.  Margaret 
the  widow,  and  "William  tho  son  of  tho  tsstator,  wcro  tho  cxeo- 


APRIL  TERM,  1838.  75 

Goblo  v.  Andruss  et  al. 

utors  named  in  the  will,  both  of  whom  proved  the  will,  but  Wil- 
liam the  son  intermeddled  most  with  the  estate,  and  then  died. 
The  bill  sought  a  general  account  of  the  personal  estate  of  the 
testator,  and  made  only  the  surviving  executor,  and  the  heirs  at 
law  of  the  deceased  co-executor,  parties.  It  was  held,  that  the 
personal  representatives  of  the  deceased  executor  must  be  made 
parties.  The  reason  given  by  lord  Hardwicke  in  his  opinion, 
distinguishes  that  case  from  the  present.  Payment  was  to  be 
made  out  of  the  real  estate,  only  in  the  event  of  the  personal 
estate  not  being  sufficient ;  it  was  therefore  necessary  that  there 
should  be  an  account  of  the  personal  estate  in  the  hands  of  the 
co-executor,  so  that  the  heirs  could  judge  whether  the  real  estate 
was  rightly  called  on,  and  for  that  purpose  the  representatives  of 
the  deceased  executor  were  made  parties.  By  that  case  it  also 
appeared,  that  the  deceased  executor  was  the  one  who  had  prin- 
cipally intermeddled  with  the  estate.  But  suppose,  as  in  the 
case  now  before  the  court,  the  bill  had  charged  that  the  deceased 
executor  was  a  formal  executor,  and  had  no  part  of  the  estate  in 
liis  hands,  would  his  representatives  then  have  been  necessary 
parties  ?  Clearly  not,  from  the  very  reasoning  of  the  chancellor. 
And  he  goes  on  further  to  say,  that  where  you  seek  a  complete 
recount,  you  arc  entitled  to  have  the  representatives  of  tho  de- 
ceased executor  l>efore  the  court ;  for  "  each  executor  may  pos- 
e?cs  Borne  distinct  part  of  the  personal  estate."  The  whole  rea- 
LOII  given  for  making  them  parties,  is  having  assesta  in  their 
hands,  which  in  tho  present  case  is  expressly  denied. 

The  next  case  cited,  is  that  of  Holland  v.  Prior,  from  8  Con- 
densed English  Chancery  Reports,  487.  This,  is  a  very  long 
opinion,  ;unl  reviews  most  of  the  cases  on  the  subject.  The  bill 
v/as  filed  p/jainst  the  executor  of  the  administratrix  with  the  will 
annexed,  and  against  the  administrator  de  bonis  non  of  the  ori- 
('iiu:l  testator.  And  the  question  was,  whether  any  other  party 
could  bo  made  defendant  llir.n  the  administrator  de  ban-is  non. 
The  court  decided  that  they  might,  upon  tho  ground  that  the 
iiryt  administrator  had  received  assets,  and  tho  bill  prayed  that 
Lcr  executor  might  r.ecount  for  and  pay  over  the  amount  of  such 


76  CASES  IN  CHANCEKY 

Goblo  v.  Andruss  et  al. 

assests.  The  chancellor  states  the  case  in  his  own  language, 
thus : — "  The  question  is,  therefore,  whether  the  executor  of  an 
administrator,  who  had  received  assets  of  the  per  son  represent- 
ed by  her,  can  be  made  a  party  to  a  suit  instituted  by  the  credi- 
tors of  that  person."  These  assets  being,  or  not  being,  in  the 
hands  of  the  deceased  representative,  make  the  difference  in  the 
cases  now  cited  and  that  before  the  court.  Besides,  it  will  be 
found  in  this  last  case,  that  the  court  is  furnishing  the  com- 
plainant with  an  excuse  for  having  made  these  parties,  and  pre- 
supposes throughout  that  they  had  assets  in  their  hands. 

The  case,  as  now  presented,  stands  upon  a  demurrer  to  the 
bill.  Every  charge,  therefore,  which  is  there  well  pleaded,  is 
'admitted.  The  charge,  that  all  the  assets  are  in  the  hands  of 
•the  defendant,  I  consider  material,  and  well  pleaded.  But  it  is 
insisted  that  there  is  a  difference  in  this  case  from  those  cited  from 
the  books,  inasmuch  as  here  was-  a  decree  of  the  orphan's  court 
establishing  a  joint  liability  in  the  executors.  I  cannot  think  this 
decree  makes  the  liability  any  more  joint  than  it  was  before. 
They  were  jointly  liable  before,  as  well  as  since  the  decree.  The 
decree  only  ascertained  the  amount  due,  leaving  the  liability  the 
Bamc  as  before,  joint,  and  leaving  wholly  undetermined  and  open, 
as  between  the  parties  themselves,  what  part  of  the  estate  each 
executor  had.  It  would  be  a  dangerous  doctrine,  that  a  settle- 
ment by  two  executors  in  the  orphan's  court,  and  a  decree  estab- 
lishing the  amount  in  their  hands,  should,  as  between  themselves, 
be  conclusive  that  each  at  the  time  had  half  of  the  estate.  Such 
decree,  in  my  opinion,  has  no  euch  effect.  It  ascertains  the 
amount  in  their  joint  hands,  for  which  they  are  jointly  liable,  but 
open  to  be  settled  as  to  the  amount  each  has  in  his  hands  at  the 
time.  This,  therefore,  cannot  vary  the  question.  , 

There  is  a  charge  in  the  bill,  that  the  complainant  had  receiv- 
ed one  hundred  and  forty  dollars  from  the  defendant,  Isaac  An- 
druss, in  the  life-time  of  her  husband,  on  account  of  her  legacy, 
and  it  is  insisted  that  this  is  a  reason  for  making  the  representa- 
tives of  her  husband  a  party.  I  cannot  see  how  this  can  be,  for 
at  all  events  this  complainant  agrees  to  give  the  defendant  a  ere- 


APKIL  TERM,  1838.  77 


Goble  v.  Andruss  ct  ul. 


dit  for  so  much  paid  her  on  account  of  her  legacy,  and  if  so,  that 
is  enough  for  all  the  purposes  of  this  suit. 

It  was  further  pressed,  that  this  defendant  was  desirous  of 
bringing  all  parties  before  the  court,  that  they  might  be  bound 
by  the  decree,  and  in  case  of  payment,  that  he  might  be  protect- 
ed and  indemnified ;  also  that  the  accounts  of  the  two  executors 
might  be  settled  in  this  action.  These  are  all  matters  fair  in  ar- 
gument, and  I  make  no  question  are  insisted  on  from  a  belief 
that  they  are  important  to  the  defendant's  interests.  From  the 
view  which  I  take  of  the  question,  I  cannot  say  the  complainant 
is  bound,  according  to  authority  and  the  settled  practice  of  the 
court,  to  make  the  parties  to  his  suit  now  asked  for,  upon  the  bill 
as  now  framed,  however  great  a  convenience  it  might  be  for 
the  defendant. 

The  demurrer,  therefore,  must  be  overruled,  with  costs,  and 
the  defendant  put  to  his  answer. 
Demurrer  overruled. 


ADVDMXD  UT 


THE  PREROGATIVE  COURT, 

APRIL    TERM,     1838. 


SAMUEL  READ  v.  AMOS  H.  DRAKE. 

The  appeal  given  to  the  prerogative  court  by  the  twenty-seventh  section  of  the 
act,  entitled  "An  act  to  ascertain  th  •  power  and  authority  of  tho  ordinary 
and  his  surrogates,  to  regulate  the  jurisdiction  of  the  prerogative  court,  and 
to  estublis  )  an  orphan's  court  in  the  several  counties  of  thu  state,"  passed 
June  13th,  1820,  (Rev.  Laws,  784,)  authorizes  the  ordinary  to  look  into  the 
met  its  of  the  decision  made  by  the  orphan's  court  in  granting  letters  of 
guardianship,  and  to  affirm  or  set  abide  and  change  the  appointment  made 
by  the  orphan's  court,  as  the  ordinary  shall  think  the  legal  and  just  rights  of 
the  parties  require. 

la  coses  of  disputed  claims  to  the  right  of  guardianship,  the  depositions  taken 
at  the  hearing  should  be  reduced  to  writing  by  the  surrogate,  and  be  sent  up 
with  the  papers  on  the  appeal. 

Whether  depositions  are  taken  and  sent  up  or  not,  the  ordinary  may,  in  his  dis- 
cretion, allow  further  depositions  to  be  taken  on  notice,  before  the  surro- 
gate, to  be  used  on  the  hearing  of  the  appeal. 

By  the  twenty-eighth  section  of  the  net  of  the  13th  of  June,  1820.  (Rev. 
Laws,  784,)  the  mother  or  next  of  kin  are  given  a  clear  preference,  and  are 
entitled,  if  they  desire  it,  to  the  appointment  of  guardian  for  minors  under 
fourteen  years  of  nge,  and  cannot  be  passed  by  except  upon  some  satisfac- 
tory objection  made  and  sustained  before  the  court. 

THIS  cause  came  before  the  court  upon  appeal  from  a  decree 
of  the  orphan's  court  of  the  county  of  Warren,  appointing  Amos 
II.  Drake  guardian  of  the  persons  and  estates  of  Sally  Ann 
Drake  and  Maria  Drake,  minors  under  the  age  of  fourteen  years. 
The  parents  of  the  minors  were  both  dead.  At  February  term, 


APRIL  TERM,  1803.  70 

Bead  v.  Drake. 

1837,  Samuel  Read,  the  maternal  grandfather  of  the  minors, 
applied  to  the  orphan's  court,  pursuant  to  the  provisions  of  the 
statute,  to  be  appointed  guardian  of  the  said  minors.  At  the 
same  term,  Elizabeth  Swayze,  (formerly  Elizabeth  Drake,)  the 
paternal  grandmother  of  the  minors,  together  with  several  of 
their  paternal  uncles  and  aunts,  made  application  to  the  said 
court,  for  the  appointment  of  Amos  H.  Drake,  a  paternal  uncle 
of  the  minors,  as  their  guardian.  Both  .applications  came  on  for 
hearing  before  the  orphan's  court  at  the  same  time,  and  evidence 
was  adduced  by  both  parties.  Objections  were  made  to  the  ap- 
pointment of  Read  as  guardian,  principally  on  the  ground  that 
he  had  been  the  acting  administrator  of  the  estate  of  George  W. 
Drake,  (who  was  the  father  of  the  said  minors,)  and  that  the 
friends  of  the  minors  were  dissatisfied  with  the  account  of  his 
administration  as  settled  in  the  orphan's  court ;  alleging  that 
it  did  not  contain  a  full  statement  of  the  estate,  and  that  a 
large  amount  of  property  was  kept  back  and  unaccounted  for. 
The  orphan's  court,  upon  the  hearing,  rejected  the  application 
of  Read,  and  appointed  Amos  H.  Drake  guardian  of  the  mi- 
nors. 

From  this  decree  Samuel  Read  appealed ;  and  by  his  petition 
of  appeal,  prayed  that  the  decree  of  the  orphan's  court  might  be 
reversed,  and  that  he  should  be  appointed  guardian,  bearing 
nearer  of  kin  to  the  minors  than  the  said  Amos  II.  Drake.  Af- 
ter filing  his  petition,  on  the  16th  of  May,  1837,  the  appellant 
obtained  an  order  of  the  prerogative  court,  that  both  parties  have 
leave  to  take  depositions  before  the  surrogate  of  the  county  of 
Warren,  upon  ten  days'  notice,  to  be  used  upon  the  hearing  of 
the  appeal.  Much  testimony  wag  taken  in  pursuance  of  this 
rule,  by  the  parties,  which  was  objected  to  on  the  hearing  by  the 
respondent  as  incompetent,  on  the  ground  that  the  evidence  be- 
fore the  orphan's  court  should  have  been  reduced  to  writing  by 
the  surrogate,  and  sent  up  to  the  prerogative  court ;  and  that 
the  appeal  should  be  heard  and  decided  upon  that  evidence 
alone.  The  cause  was  heard  upon  the  petition,  answer,  and 
proofs. 


80  PEEKOGAT1VE  CO  (JET, 


Head  v.  Drake. 


Frelinghuysen,  for  appellant,  insisted, 

1.  That  Drake  is  one  degree  further  removed  in  kindred  from 
the  minors,  than  the  appellant. 

2.  That  as  between  kindred  in  equal  degree,  the  male  should 
be  preferred  to  the  female. 

3.  That  guardianship  ought  to  be  granted  to  one  to  whom  the 
lands  of  the  minors  could  not  descend. 

4.  That  the  complaint  against  Read,  the   appellant,  upon 
•which  he  was  excluded  from  the  guardianship,  was  frivolous. 

He  cited,  R&o.  Laws,  7S4-5,  sees.  27,  28 ;  Consets  on  Courts, 
216,  5,  sec.  3 ;  5  Cranch,  281-3 ;  7  Cranch,  22.  107,  122 ; 
Griffith's  Treatise,  198. 

H.  W.  Green,  for  respondent,  in  reply,  insisted, 

1.  That  the  authority  of  the  orphan's  court,  under  the  statute, 
in  the  appointment  of  Guardians,  was  discretionary. 

2.  That  that  discretion  having  been  exercised,  after  a  delibe- 
rate hearing,  in  the  presence  of  all  the  parties,  upon  full  evi- 
dence, this  court  will  not  disturb  the  decree  except  for  manifest 
error. 

3.  That  if  the  orphan's  court  assign  improper  reasons  for  the 
exercise  of  their  discretion,  this  court  will  reverse  their  decree ; 
but  will  not  presume  an  improper  reason,  if  none  is  assigned* 
Eldridge  and  wife  v.  Lippincott,  guardian,  Coxe,  397. 

4.  That  the  depositions  taken  by  the  surrogate  since  the  hear- 
ing before  the  orphan's  court,  were  incompetent,  and  ought  to  be 
overruled. 

THE  OKDINAET.  Upon  the  above  case  I  decide  as  fol- 
lows : — 

1.  That  by  the  twenty- seventh  section  of  the  act,  entitled, 
"An  act  to  ascertain  the  power  and  authority  of  the  ordinary  and 
his  surrogates,  to  regulate  the  jurisdiction  of  the  prerogative 
court,  and  to  establish  an  orphan's  court  in  the  several  counties 
of  this  state,"  (Rev.  Laws,  784,)  the  appeal  given  to  the  pre- 
rogative court  authorizes  the  ordinary  to  look  into  the  merits  of 


APEIL  TEEM,  1838.  81 


Read  v.  Drake. 


the  decision  made  by  the  orphan's  court  in  granting  letters  of 
guardianship,  and  to  affirm  or  set  aside  and  change  the  appoint- 
ment made  by  the  orphan's  court,  as  the  ordinary  shall  thi  Jc 
the  legal  and  just  rights  of  the  parties  require. 

2.  That  in  cases  of  disputed  claims  to  the  right  of  guardian- 
ship, the  depositions  taken  at  the  hearing  should  be  reduced  to 
writing  by  the  surrogate,  and  be  sent  up  with  the  papers  on  the 
appeal ;  and  that,  whether  depositions  are  taken  and  sent  up  or 
not,  the  ordinary  may,  in  his  discretion,  allow  further  deposi- 
tions to  be  taken  on  notice,  before  the  surrogate,  to  be  used  on 
the  hearing  of  the  appeal. 

3.  That  by  the  twenty-eighth  section  of  said  act,  the  mother 
or  next  of  kin  are  given  a  clear  preference,  and  are  entitled,  if 
they  desire  it,  to  the  appointment  of  guardian  for.  minors  under 
fourteen  years  of  age,  and  cannot  be  passed  by,  except  upon 
some  satisfactory  objection  made  and  sustained  before  the  court. 

4.  That  in  the  present  case,  I  see  no  satisfactory  reason  to 
pass  by  the  next  of  kin,  who  on  all  hands  is  admitted  to  be  the 
appellant. 

5.  That  the  decision  of  the  orphan's  court  of  the  county  of 
Warren  be  reversed ;  that  the  lettters  of  guardianship  granted  to 
Amos  II.  Drake  be  set  aside,  and  that  such  letters  be  granted  to 
Samuel  Head,  the  appellant,  being  the  next  of  kin  to  the  minors, 
who  are  under  fourteen  years  of  age,  upon  his  giving  bond  ac- 
cording to  law. 

The  following  decree  was  thereupon  made : — 
This  appeal  coming  on  to  be  heard  at  a  special  term  of  the 
prerogative  court,  held  at  Trenton,  before  his  excellency  William 
Pennington,  governor  of  the  state,  and  ordinary  in  the  same, 
on  Wednesday,  the  sixteenth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  thirty-eight,  in  tho  pre- 
sence of  Theodore  Frelinghuysen,  of  counsel  for  the  appellant, 
and  of  Henry  W.  Green,  of  counsel  for  the  respondent ;  and  the 
matters  therein  having  been  read  and  considered,  and  after  tho 
arguments  of  counsel  heard,  the  ordinary  was  of  opinion  that 


82  PREROGATIVE  COURT, 


Bead  v.  Drake. 


the  said  Samuel  Read,  was  the  next  of  kin  to  the  said  minors. 
Sally  Ann  Drake  and  Maria  Drake,  and  that  no  sufficient  rea- 
son appeared  to  pass  by  him  in  the  choice  and  appointment  oi 
guardian  for  the  said  minors.  It  is  therefore  ordered,  adjudged 
and  decreed,  that  the  said  decree  of  the  orphan's  court  of  the 
county  of  "Warren,  appealed  from  in  this  cause,  appointing  the 
eaid  respondent  guardian  of  the  said  minors,  be,  and  the  same 
is  hereby  reversed  and  set  aside :  and  it  is  further  ordered,  that 
letters  of  guardianship  be  granted  to  the  said  Samuel  \Read,  ap- 
pointing him  the  guardian  of  the  said  Sally  Ann  Drake  and 
Maria  Drake,  and  that  said  letters  be  issued  from  the  preroga- 
tive office  of  this  court,  on  the  terms  provided  by  the  statute  in 
such  case  made.  On  motion  of  William  C.  Morris,  proctor  for 
the  appellant. 

CITED  in  Albert  v.  Perry,  1  McCar,  540.     Bayers  Ad.  v.  Sayre,  1  C.  E.  Or.t 
508. 


ISAAC  LOWE  v.  WILLIAM  H.  WILLIAMSON". 

What  constitutes  testamentary  capacity,  or  the  "  sound  and  drepoeing  mind 
and  memory  "  essential  in  a  testator. 

The  mere  opinions  of  -witnesses  (other  than  the  testamentary),  unsupported 

by  facts,  are  entitled  to  no  weight. 
The  influence  acquired  over  a  testator  by  kind  offices,  unconnected  with  any 

fraud  or  contrivance,  cau  never,  alone,  be  a  good  ground  of  setting  aside 

a  will ;  such  influence  is  lawful  and  proper. 
The  influence  thus  acquired,  though  exerted  over  a  testator  above  eighty  years 

of  ag\  whose  bodily  faculties  are  impaired,  and  who,  without  good  reason, 

entertains  feelings  of  hostility  to  his  family,  cannot  invalidate  the  will. 

ON  the  15th  of  July,  1833,  WiUiam  II.  Williamson  exhibit- 
ed to  the  surrogate  of  the  county  of  Somerset,  for  probate,  a 
paper  writing,  purporting  to  be  the  last  will  and  testament  of 
John  D.  Lowe,  late  of  the  township  of  Hillsborough,  in  said 
county.  Isaac  Lowe,  a  brother  of  the  said  John  D.  Lowe,  hav- 
ing filed  a  caveat  against  the  probate  of  the  said  instrument,  the 
cause  was  brought  to  hearing  before  the  orphan's  court  of  said 


APRIL  TERM,  1838.  83 


Lowo  v.  Williamson. 


county  of  Somerset.  That  court,  after  hearing  testimony  and 
counsel  upon  both  sides,  by  their  decree,  bearing  date  on  the  26th 
of  March,  1835,  admitted  the  said  writing  to  probate  as  the  will 
of  the  said  John  D.  Lowe,  and  directed  that  the  costs  of  suit 
should  be  paid  equally  by  the  parties. 

From  this  decree  the  caveator  appealed,  and  by  his  petition 
complains  that  "  the  said  decree  is  erroneous,  contrary  to  law, 
and  against  the  evidence."  The  respondent,  "William  II.  "Wil- 
liamson, having  filed  his  answer  to  the  petition  of  appeal,  the 
cause  came  on.  for  hearing  before  the  ordinary,  at  January 
term,  1838. 

The  material  facts  and  circumstances  adduced  in  evidence, 
and  relied  upon  by  the  respective  parties,  as  far  as  necessary 
to  an  understanding  of  the  case,  are  stated  in  the  opinion  of  the 
ordinary. 

P.  L  Clark  and  Frelinghuysen,  for  appellant,  insijtod  that 
the  testator  was  not  competent  to  make  a  will, 

1.  Because  he  was  destitute  of  testamentary  capacity. 

2.  By  reason  of  monomania  —  a  delusion  of  mind  as  to  his 
family,  under  which  he  labored. 

3.  From  improper  influence  exercised  over  him  by  the  de- 
visee. 

They  cited  3  Stark.  1702,  n.  ;  2  South.  455  ;  3  Stark.  1737, 
n.4;  Swinb.  78;  6  Coke,  23,  «.;  1  Pctos  C.  C.  12.  104: 
1  Chitty's  Med.  Jur.  352;  13  Vcsey,  89;  3  StarL  1703,  8; 
5  Johns.  158  ;  2  Yeates,  48  ;  2  South,  CGO  ;  Cooper's  Med. 
Jur.  340,  8;  8  Mass.  371  ;  9  Yesey,  185;  11  Ibid,  11  ;  7  Sety. 
andR.W',  8  /&#,  573. 


JIartwett  and  Wall,  for  respondent,  in  reply,  cited,  opinion, 
of  chief  justice  Ewing  in  the  case  of  MaxweWs  will  /  opinion 
of  Vroom,  ordinary,  in  the  case  of  Harris's  will;  Whitenack 
v.  Strykcr,  ante,  p.  8  ;  1  Cond.  Ecdes.  Rep.  336  ;  3  lUd,  254  ; 
Shelf  ord  on  Lunatics,  339,  318  ;  Bootes  Med.  Jur.  380  ;  4 
Wash.  C.  C.  Rep.  262;  2  South.  674. 


84:  PREROGATIVE  COURT, 


Lowe  v.  WilliamFon. 


THE  ORDINARY.  The  will  of  John  D.  Lowe,  bears  date  on 
the  Gth  day  of  August,  A.  D.  1831,  and  he  died  in  the  month 
of  July,  1833.  The  instrument  on  its  face  is  plain  and  simple, 
requiring  no  extraordinary  effort  of  mind  to  prepare  or  under- 
stand. After  providing  for  the  payment  of  his  debts,  authority 
is  given  to  his  executor  to  sell  his  personal  estate  .first,  and  if  that 
be  not  sufficent,  then  his  real  estate  to  discharge  them.  lie 
then  gives  all  his  estate,  real  and  personal,  to  "William  II.  Wil- 
liamson, whom  he  makes  his  sole  executor,  requiring  that  he  shall 
maintain  and  support  his  (the  testator's)  wife,  if  she  survive  him, 
in  a  manner  suitable  to  her  age  and  infirmities  during  her  natural 
life ;  and  he  charges  such  maintenance  and  support  upon  his  real 
estate.  This  is  the  whole  will.  The  devisee  and  executor,  "Wil- 
liam H.  Williamson,  is  a  stranger  to  the  family  of  the  testator, 
being  no  way  allied  to  him  by  blood  or  marriage.  It  cannot  be 
.  matter  of  wonder  that  the  immediate  relations,  those  to  whom 
the  estate,  according  to  the  course  of  nature,  would  have  gone, 
should  feel,  and  feel  sensibly,  this  disposition  of  the  property. 
It  furnishes  with  me  an  additional  motive  to  look  into  the  casa 
with  care. 

There  are  a  variety  of  circumstances  appearing  by  the  evi- 
dence, which  meet  this  part  of  the  subject,  and  account,  in  somo 
measure,  for  the  will  The  testator  had  no  children.  His  wife, 
like  himself,  was  aged  and  infirm.  He  had,  with  or  withoui 
sufficient  cause,  long  estranged  himself  from  his  family. 
Through  a  course  of  years,  so  far  from  manif esting  any  tiling 
of  that  affection  and  regard  which  would  naturally  be  looked  f  oi 
from  a  man  toward  his  nearest  relatives,  he  was  full  of  expres- 
sions of  hostility  towards  them  all.  lie  seemed  to  entertain  the 
opinion,  that  they  looked  down  upon  him.  There  was  little  or 
no  intercourse  between  him  and  his  family.  He  frequently  tri- 
umphed in  the  idea  that  his  brothers  would  bo  mad  when  they 
found  they  got  none  of  liis  property.  Ho  had  made  other  wills. 
In  the  last,  made  many  years  before  his  death,  he  gave  none  of 
his  property  to  liis  family,  but  to  a  young  man  a  relative  of  his 
•wife.  All  these  circumstances  are  very  strong,  and  furnish  tho 


APRIL  TERM,  1838. 


Lowe  v.  Williamson. 


motives  which  actuated  the  testator  in  the  disposition  of  his  pro- 
perty. I  am  very  far  from  seeing  any  thing  in  the  evidence  to 
joetify  this  hostility  towards  his  relatives,  but  that  he  entertained 
these  feelings  for  a  long  course  of  years  is  abundantly  proved. 
His  habits  of  gross  intemperance  would  certainly  have  excused 
even  a  relative  from  any  close  association.  lie  made  by  his  will 
provision  for  his  wife  ;  and  it  is  worthy  of  remark,  that  although 
the  devisee  (Mr.  Williamson)  was  a  stranger  to  the  blood  of  the 
testator,  yet  he  evidently  had  a  strong  attachment  for  him.  They 
had  lived  together  for  several  years,  and  the  testator  had  received 
great  kindness  and  attention  from  him  in  his  declining  years, 
and  not  only  himself  but  his  wife  also.  The  testator  spoke  fre- 
quently of  his  kindness  ;  and  it  must  be  conceded,  that  although 
a  man  of  strong  prejudices,  he  was  not  insensible  to  offices  of 
kindness  and  attention.  When  the  testator  offered  to  give  his 
estate  to  others,  which  he  did  on  several  occasions,  it  was  gene- 
rally, if  not  always,  coupled  with  the  condition,  that  they  would 
come  and  live  with  him,  and  take  care  of  him  and  his  wife. 
These  are  all  matters  proper  and  necessary  to  be  borne  in  mind, 
when  considering  the  unnatural  character  of  the  provisions  of 
die  will. 
Three  grounds  are  taken  against  the  will  :  —  1.  Incapacity. 

2.  That  the  testator  had  a  delusion  of  mind  as  to  his  family. 

3.  That  improper  influence  was  exercised  in  its  procurement. 
What  constitutes  "  a  testamentary  capacity,"  or  in  other  words 

'  a  sound  and  disposing  mind  and  memory,"  has  been  repeated- 
ly settled  in  this  court.  The  correct  and  settled  construction  is 
contained  in  the  case  of  Den.  v.  Vancleve,  in  4:  Washington's 
Circuit  Court  Reports,  207-8.  The  language  used  by  the 
judges  in  that  case,  I  find  repeated  in  almost  every  case  since, 
r.nd  must  be  taken  now  as  the  received  definition  and  meaning 
of  the  above  terms.  The  language  is,  "  lie  (the  testator)  must, 
in  the  language  of  the  law,  be  possessed  of  a  sound  and  dispos- 
ing mind  and  memory.  lie  must  have  memory.  A  man  in 
whom  this  faculty  is  totally  extinguished,  cannot  be  said  to  pos- 
se s  understanding  to  any  degree  whatever,  or  for  any  purpose. 


86  PREROGATIVE  COURT, 


Lowe  v.  Williamson. 


But  his  memory  may  be  very  imperfect ;  it  may  be  greatly , im- 
paired by  age  or  disease ;  he  may  not  be  able,  at-  all  times,  to 
recollect  the  names,  the  persons,  or  the  families,  of  those  with 
whom  he  had  been  intimately  acquainted ;  may  at,  times  ask  idle 
questions,  and  repeat  those  which  had  before  been  asked  and  an- 
swed;  and  yet  his  understanding  may  be  sufficiently  sound 
for  many  of  the  ordinary  transactions  of  life.  He  may  not  have 
sufficient  strength  of  memory  and  vigor  of  intellect  to  make  and 
to  digest  all  the  parts  of  a  contract,  and  yet  be  competent  to  di- 
rect the  distribution  of  his  property  by  will.  This  is  a  subject 
which  he  may  possibly  have  often  thought  of ;  and  there  is  pro- 
bably no  person  who  has  not  arranged  such  a  disposition  in  his 
mind,  before  he  committed  it  to  writing.  The  question  is  not  so 
much  what  was  the  degree  of  memory  possessed  by  the  testator, 
as  this — Had  he  a  disposing  memory  ?  Was  he  capable  of  recol- 
lecting the  property  he  was  about  to  bequeath,  the  manner  of 
distributing  it,  and  the  objects  of  his  bounty  ?  To  sum  up  the 
whole  in  the  most  simple  and  intelligible  form,  were  his  mind 
and  memory  sufficiently  sound  to  enable  him  to  know  and  to 
understand  the  business  in  which  he  was  engaged  at  the  time 
when  he  executed  his  will  2 " 

In  the  opinion  of  chief  justice  Ewing  and  justice  Drake,  on 
the  will  of  John  Maxwell,  sitting  for  the  ordinary  (Yroom)  in 
this  court,  after  quoting  the  above  language  of  judge  Washing- 
ton, they  say,  "  we  shall,  on  the  present  occasion,  adopt  in  sub- 
stance the  doctrine  laid  down  by  judge  Washington,  as  the  pro- 
per exposition  of  the  terms,  sound  and  disposing  mind  and  me- 
mory, and  the  correct  standard  of  testamentary  competency  and 
capacity.  Wo  find  it  perspicuous,  wo  believe  it  sonnd,  and  wo 
learn  it  was  received  and  approved  by  the  ordinary  in  the  recent 
case  of  the  appeal  on  the  will  of  Taccy  Wallace"  Chancellor 
Yroom,  in  the  case  of  the  will  of  Adam  Snyder,  says,  in  refer- 
ence to  this  same  opinion  of  judge  Washington,  "  In  the  case 
of  Tacey  Wallace's  will,  decided  in  this  court  in  January, 
1831,  and  in  the  case  of  John  MaxweWs  will,  decided  in  this 
court  in  October,  *1831,  by  chief  justice  Ewing  and  justice  Drake, 


APRIL  TERM,  1838.  87 


Lowe  v.  Williamson. 


sitting  for  the  ordinary,  the  law  as  laid  down  in  the  authorities 
above  cited,  is  considered  as  the  law  of  the  land,  and  the  court 
has  so  held  it  in  subsequent  cases." 

The  law,  therefore,  on  this  subject,  is  well  settled  in  this 
court. 

[After  a  minute  examination  of  the  very  voluminous  evidence 
touching  the  testator's  capacity, which  is  here  omitted,  the  ordi- 
nary proceeds — ] 

If  the  mere  opinions  of  witnesses  were  to  govern,  it  would  bo 
impossible  to  decide  this  cause.  They  are  nearly  divided  on  that 
point.  But  it  is  singular  to  remark,  that  many  witnesses  in  this 
cause,  while  they  repeat  again  and  again  their  opinion  against 
the  testator's  capacity,  state  no  single  fact  upon  which  such  an 
opinion  can  rest :  nay,  in  many  cases,  the  conversations  which 
they  relate,  and  the  testator's  whole  conduct,  would  seem  to  havo 
been  perfectly  rational.  The  testator  was  eighty  years  of  age, 
very  deaf,  and  his  eye-sight  defective.  It  was  no  strange  thing, 
that  under  his  circumstances,  many  should  havo  been  impressed 
with  a  firm  belief  of  his  incompetcncy  to  transact  any  business. 
This  was  no  doubt  strengthened  by  the  fact,  that  he  was  much 
in  the  habit  of  depending  on  his  wife.  She  appeared  to  control 
every  thing. 

From  a  careful  examination  of  the  facts  related,  not  placing 
my  dependence  on  the  mere  opinions  of  the  witnesses,  I  can 
come  to  no  ether  conclusion,  than  that  the  testator  had  mind 
and  memory  sufficient  to  execute  the  will  in  question.  All  tho 
subscribing  witnesses,  and  tho  writer  of  the  will,  with  many 
other  witnesses,  agree  that  he  had ;  and  the  general  course  of 
his  conversation,  when  sober,  shows  no  such  prostration  of  his 
mental  powers  as  will  justify  mo  in  setting  aside  this  will.  It 
will  be  remarked,  that  there  is  no  pretence  of  derangement;  but  tho 
ground  assumed  is,  that  his  long  habits  had  gradually  so  enfee- 
bled his  mind,  that  he  was  not  competent  to  discharge  so  solemn 
a  duty  as  tho  making  of  this  will. 

Some  views  were  presented  by  the  counsel  of  the  caveatora  of 
an  imposing  character,  but  a  strict  examination  of  the  evidenco 


Lowe  v.  Williamson. 


will  not  enable  me  to  sustain  them.  Among  these,  there  was 
one  which  at  the  time  made  a  strong  impression  on  my  mind, 
viz.  that  the  condition  of  the  testator's  mind  was  such,  so  enfee- 
bled by  age,  by  drunkenness,  and  general  infirmity,  that  he  was 
an  easy  prey  to  any  man  who  might  flatter  his  prejudices.  I 
cannot,  however,  find  the  evidence  strong,  enough  to  believe  that 
he  was  thus  deluded.  The  manner  of  executing  the  will,  the 
time  taken,  the  apparent  reluctance  on  the  part  of  Williamson 
to  go  after  Mr.  Manners,  all  are  at  war  with  such  an  attempt. 
Could  this  testator,  by  any  flattery,  have  been  induced  to  make 
a  will  in  favor  of  his  relatives  ?  If  not,  then  he  had  mind 
and  will  to  act  on  this  subject.  His  course  was  uniform.  IIo 
rJways  said  he  would  not  give  his  property  to  his  relatives.  As 
to  the  argument  derived  from  the  influence-  acquired  over  the  tes- 
tator by  kind  offices,  that  alone  can  never  be  a  good  ground  for 
setting  aside  a  will,  unconnected  with  any  fraud  or  contrivance. 
So  far  as  that  went  in  the  present  case,  I  consider  it  creditable  to 
Williamson  and  his  family.  They  did  take  good  care  of  these 
old  people,  and  if  that  circumstance  has  had,  as  it  no  doubt  had, 
an  influence  on  the  testator's  mind  in  making  this  will,  it  was 
lawful  and  proper.  I  cannot  see  any  such  improper  influence 
exerted  over  the  testator  as  to  affect  this  case. 

It  was  further  urged,  that  the  testator  was  under  a  species  of 
derangement  or  delusion  as  to  his  relatives :  that  ho  took  up  a 
prejudice  without  cause.  I  have  before  said,  that  I  find  no  good 
reason  for  li.Is  hostility,  but  it  is  plain  that  the  testator  had  such 
feelings  towards  them.  There  was  no  intimacy  with  them. 
They  visited  him  very  little.  lie  had  an  idea  that  they  looked 
down  upon  him,  and  was  no  doubt  jealous  of  their  superior 
standing.  There  was,  then,  no  delusion,  but  a  reality  in  the 
fact,  that  there  existed  no  cordiality  between  him  and  his  rela- 
tives. It  was  of  long  standing ;  not  sudden  and  accidental,  but 
abiding. 

Upon  the  whole  case,  I  am  constrained  to  say,  that  I  see  no 

ood  ground  for  refusing  tho  probate  of  this  will.     I  therefore 

affirm  the  decision  of  the  orphan's  court  of  the  county  of  Som- 


APRIL  TERM,  1838.  89 


Lowo  v.  Williamson. 


ereet  in  all  respects,  and  direct  each  party  to  pay  his  own  costs 
on  this  appeal. 

The  following  decree  was  thereupon  made : — 
"  This  cause  having  been  heard  and  debated  before  this  court, 
in  the  presence  of  the  counsel  of  the  respective  parties,  at  the 
term  of  January  last,  and  the  court  having  taken  time  to  con- 
sider thereon ;  whereupon,  and  upon  inspecting  and  considering 
the  proofs,  depositions,  and  exhibits,  and  the  paper  writing  pur- 
porting to  be  the  last  will  and  testament  of  the  said  John  D. 
Lowe,  deceased ;  the  court  is  of  opinion  that  the  said  testator, 
John  D.  Lowe,  at  the  time  of  making  and  executing  the  said 
last  will  and  testament,  was  of  sound  and  disposing  mind  and 
memory,  and  possessed  sufficient  testamentary  capacity  to  make 
and  execute  the  said  last  will  and  testament,  and  that  probate 
thereof  ought  to  be  granted  in  due  form  of  law.  It  is  thereupon 
at  a  prerogative  court  held  at  Trenton,  on  tin's  ninth  day  of 
April,  A.  D.  1838,  ordered,  adjudged  and  decreed,  that  the  de- 
cree of  the  orphan's  court  of  the  county  of  Somerset,  be  in  all 
things  affirmed,  and  that  the  said  will  be  admitted  to  probate, 
and  further,  that  each  party  pay  his  own  costs  on  this  appeal." 


AD/TTDOED  IN 


THE  COURT  OF  CHANCERY 

OF  TEE  STATE  OF  NEW  JERSEY. 
JULY    TEEM,    1838. 


JANE  KICIIMOND  v.  WALTER  M.  RICHMOND. 

There  is  no  fixed  general  rale  by  -which  to  graduate  the  allowance  for  alimo- 
ny, but  every  case  must  depend  very  much  on  its  own  pecuMar  circum- 
stances. 

The  allowance  will  not  be  graduated  solely  by  a  regard  to  the  actual  rents  and 
profits  of  the  defendant's  estate  at  the  time  ;  nor  by  the  actual  wants  of  the 
complainant. 

The  defendant's  property  must  be  estimated  by  its  value  at  the  date  of  the 
master's  report,  and  not  by  its  value  at  the  time  of  filing  the  bill. 

Does  the  statute  of  New- Jersey  (Rev.  Laws,  6G8,  sec.  9)  authorize  any  fur- 
ther process  to  enforce  a  decree  for  the  alimony  and  maintenance  of  the 
wife,  and  the  maintenance  of  the  children,  than  a  sequestration  ? — Qit. 

Where,  upon  a  decree  for  a  divorce,  the  children  are  placed  by  the  court  un- 
der the  charge  of  the  mother,  the  allowance  for  their  maintenance  will  bo 
Bucli  that  the  children  may  bo  fully  maintained  in  a  manner  corresponding 
with  the  condition  in  life  of  the  father.  The  court,  in  placing  the  children 
under  the  charge  cf  the  mother,  mean  to  impose  upon  her  no  burden  of  a 
pecuniary  character. 

It  seems  that  this  court  has  the  power  at  any  time,  on  a  change  of  circum- 
stances, to  vary  the  allowance  for  alimony,  by  increasing  or  diminishing  it. 

Tins  bill  was  for  a  divorce,  upon  the  grounds  of  extreme 
cruelty  and  adultery.  It  prayed  a  decree  for  a  divorce  from  tho 
bond  of  matrimony :  that  the  complainant  might  have  the  care, 


JULY  TEEM,  1838.  91 


Richmond  v.  Richmond. 


custody  and  charge  of  the  persons  of  her  children,  and  the  su- 
perintendence of  their  education  ;  and  that  the  defendant  should 
pay  to  the  complainant  a  reasonable  allowance  for  her  support 
and  alimony,  and  for  the  support,  education,  clothing  and  main- 
tenance of  her  children. 

Oa  the  13th  of  October,  1837,  the  court  divorced  the  parties, 
a  vinculo  matrimonii,  for  the  cause  of  adultery  in  the  defend- 
ant, and  placed  the  children  under  the  care  and  management  of 
the  complainant.  By  that  decree,  a  reference  was  made  to  a 
master,  to  inquire  into  the  circumstances  and  condition  of  the 
said  parties,  and  the  circumstances  and  condition  of  the  said 
children,  and  into  all  the  matters  touching  the  amount  to  be  al- 
lowed the  complainant  for  alimony,  and  for  the  support,  clothing 
and  education  of  the  children.  The  master  reported  fully  on 
the  whole  case,  and  returned  the  evidence  upon  which  his  report 
was  founded.  He  estimated  the  value  of  the  defendant's  estate, 
both  real  and  personal,  at  the  time  of  filing  the  bill,  over  and 
nbove  his  debts,  at  nineteen  thousand  and  sixty  dollars.  This 
consisted  almost  entirely  of  real  property  in  the  city  of  New- 
Lrunswick.  Ho  made  no  report  of  the  amount  of  the  annual 
rents  and  profits  of  the  estate,  but  reported  that  there  should  be 
allowed  to  the  complainant,  for  her  alimony  and  maintenance, 
the  interest  on  six  thousand  five  hundred  dollars  annually,  which 
at  six  per  cent,  would  be  three  hundred  and  ninety  dollars ;  and 
for  the  support,  education  and  clothing  of  the  children,  being 
three  in  number,  the  sum  of  four  hundred  and  eighty-two  dol- 
lars annually — making  in  all,  for  the  allowance  to  the  complain- 
ant and  her  three  children,  eight  hundred  and  seventy-two  dol- 
lars a  year,  payable  half-yearly.  The  master  further  reported, 
that  in  making  the  allowance  for  the  alimony  of  the  complainant, 
he  was  guided  by  analogy  to  the  right  of  dower  of  the  wife,  and 
to  her  interest,  according  to  the  statute  of  distributions,  in  the 
personal  estate,  if  the  husband  died  intestate. 

To  this  report  various  exceptions  were  filed  by  the  defendant, 
principally  upon  the  ground,  that  the  allowances  made  by  the 
master  were  too  large.  Additional  depositions  were  taken,  which, 


92  CASES  IN  CHANCERY, 

Richmond  v.  Richmond. 

together  with  the  written  statements  of  the  parties  themselves, 
were,  by  consent,  read  upon  the  hearing. 

The  cause  came  on  for  hearing  upon  the  exceptions,  and  it 
was  particularly  desired  by  the  parties  that  the  chancellor  should 
give  directions  for  a  final  decree,  withoutaxef  erence  back,  i 
event,  to  the  master.  ,~ 


Adrainand  I.  H.  Williamson,  for  defendant,  cited, 
Ch.  Rep.  604  ;  C  Hid,  92  ;  Law  Library,  No.  39  ;  3  PhUL 
387  :  3  Cond.  Ecdes.  Rep.  153  ;  Rev.  Laws,  668. 

N&oiuSy  for  complainant,  contra. 

TITE  -CryLNCELLOK.  I  have  looked  carefully  into  the  books  to 
see  if  there  was  any  fixed,  general  rule  for  allowances  of  this 
character,  and  had  I  found  one,  would  cheerfully  have  followed 
it.  I  can  find  no  such  rule,  none  has  been  furnished  me,  and 
indeed  it  would  be  impossible  to  frame  one  which  would  work 
justly  in  all  cases.  Certain  rules  have,  indeed,  been  laid  down 
from  time  to  tune,  so  as  to  form  some  guide  ;  still,  every  case 
must  depend  very  much  on  its  own  peculiar  circumstances. 

It  is  urged,  that  the  actual  rents  and  profits  of  the  defendant's 
estate  at  the  time,  are  the  only  matters  to  be  looked  at,  and  the 
allowance  must  be  graduated  by  them.  This  would  be  a  most 
uncertain  guide,  with  the  changes  to  which  we  are  continually 
exposed.  The  rents  of  property  like  that  owned  by  the  defend- 
ant, will  vary  much  in  the  course  of  a  single  year.  This  year 
they  may  be,  and  probably  are  in  fact,  much  lower  than  they 
were  last  year,  and  the  year  before  ;  and  in  the  course  of  a  year 
they  may  again  rise.  A  party,  too,  might  from  design  suffer  his 
property  to  go  untcnanted,  or  in  so  negligent  a  condition  as  to 
render  it  an  undesirable  occupation,  and  thereby  discourage  appli- 
cations to  liirc.  This  rule  is,  however,  especially  insisted  on,  as 
the  statute  on  the  subject  of  alimony,  (Rev.  Laws,  668,)  it  is 
said,  does  not  authorize  any  further  process  to  enforce  a  decree 
in  this  case  than  a  sequestration  of  the  defendant's  personal  ea- 


JULY  TERM,  1838.  93 

Richmond  v.  Richmond. 

tate,  and  the  rents  and  profits  of  his  real  estate.  If  this  were 
undeniably  true,  it  would  be  mere  matter  of  inference,  and  by 
no  means  conclusive.  But  I  think  it  may  be  well  questioned, 
whether  the  power  of  the  court  is  limited  to  such  sequestration 
for  enforcing  the  decree ;  for  the  statute,  after  giving  this  power 
of  sequestration,  adds  these  words :  "  or  to  enforce  the  perform- 
ance of  the  said  decree  or  order  by  such  other  lawful  ways  and 
means  as  is  usual,  and  according  to  the  course  and  practice  of 
the  court  of  chancery."  In  the  case  of  Bedell  v.  Bedell,  in 
1  Johns.  Ch.  Rep.  G04:,  no  general  rule  is  laid  down,  but  an  al- 
lowance is  made  of  the  full  amount  of  the  defendant's  annual 
income  for  the  support  of  the  complainant  and  one  child  six 
years  of  age.  In  Miller  v.  Miller,  G  Johns.  Ch.  Rep.  91, 
while  it  is  stated  that  the  ecclesiastical  courts  allow  for  alimony 
the  third,  or  at  least  the  fourth,  of  the  annual  income  of  the  real 
estate,  yet  it  is  very  evident  that  the  chancellor  fixes  a  SUTO  on 
the  ground  of  its  reasonableness  in  tho  given  case. 

The  defendant's  property  must  be  estimated  at  the  time  of  the 
report  of  tho  master ;  for  in  case  of  a  long-contested  suit,  to  go 
back  to  the  time  of  filing  the  bill,  might  lead  the  court  into 
great  error.  Nor  will  it  answer  to  be  guided  by  the  actual  wants 
of  the  complainant.  They  may  exceed  the  amount  which  the 
claims  of  cqu.il  justice  to  both  tho  parties  may  warrant,  and  in 
fact  might  work  an  injury  to  the  true  interests  of  the  whole  fam- 
ily, by  consuming  the  estate,  and  breaking  down  all  incentives 
to  exertion  on  the  part  of  the  defendant. 

Whatever  rules  may  obtain  as  to  the  allowance  for  the  wife, 
the  children  should  be  fully  maintained  in  a  manner  correspond- 
ing with  the  condition  in  life  of  tho  defendant.  The  court,  in 
placing  them  under  the  charge  of  their  mother,  meant  to  impose 
no  burthens  upon  her  of  a  pecuniary  character. 

I  shall,  therefore,  exercise  the  best  discretion  on  the  whole  case 
of  which  I  am  capable,  and  make  such  allowances  as  appear 
right  in  view  of  the  circumstances  and  condition  of  this  family. 

It  must  be  borne  iii  mind,  that  additional  light  has  been 
thrown  on  this  case  since  the  master  made  his  report,  by  new 


94:  CASES  IK  CHANCERY, 


Richmond  v.  Richmond. 


evidence,  and  the  statement  in  writing  of  the  parties  themselves, 
received  by  consent,  and  which  varies  and  considerably  reduces 
the  estimate  of  the  defendant's  property.  The  Smiley  property, 
which  is  estimated  by  a  brother  of  the  defendant,  doctor  Rich- 
mond, (on  whose  evidence,  from  the  relation  in  which  he  stands 
to  the  parties,  and  the  means  of  his  information,  I  place  great 
confidence,)  at  three  thousand  five  hundred  dollars,  and  by  an- 
other witness,  Mr.  Zabriskie,  at  five  thousand  dollars,  has  since 
been  sold  under  execution  at  the  reduced  price  of  one  thousand 
eight  hundred  dollars.  This  is,  no  doubt,  owing  to  the  peculiar 
embarrassment  of  the  present  times,  and  forms  no  safe  criterion. 
Yet  it  all  shows  how  uncertain  must  be  the  estimates  of  real  es- 
tate in  the  fl  actual  ing  state  of  the  times.  The  debts  of  the  de- 
fendant are  also  considerably  larger  than  the  master  had  supposed, 
as  appears  by  the  admissions  of  the  parties  themselves.  The  old 
homestead,  as  it  is  called,  cannot  for  the  present  yield  any  bene- 
fit to  the  defendant,  as  his  mother  has  a  life  interest  in  it,  al- 
though now  an  aged  woman 

In  view  of  all  these  circumstances^  there  ia  good  reason  for 
reducing  the  allowances  made  by  the  master.  I  am  quite  willing, 
and  consider  it  my  duty,  to  allow  this  complainant  and  her 
children  all  that  the  case  will  warrant.  I  shall  allow  the  com- 
plainant, for  her  alimony  and  maintenance,  the  sum  of  two 
hundred  and  fifty  dollars  annually,  and  to  each  of  the  children, 
for  their  support  and  education,  the  sum  of  one  hundred  and 
thirty  dollars  annually,  making  in  all  the  sum  of  six  hundred 
and  forty  dollars  payable  in  half-yearly  payments,  from  the  date 
of  the  iinal  decree. 

My  impression,  from  looking  at  the  statute,  is,  that  this  court 
has  the  power  at  any  time,  on  a  change  of  circumstances,  to  vary 
this  allowance,  by  increasing  or  diminishing  it;  as  the  act 
speaks  of  "  such  maintenance  and  allowance  as  to  the  said  court 
shall, //v?ra  time  to  time,  seem  reasonable  and  just."  And  in. 
the  case  before  referred  to,  in  6  Johns.  Ch.  Rep.  92,  I  find  such 
was  the  impression  of  chancellor  Kent,  on  the  words  of  the  statute 
of  the  etatc  of  Ncv.--York,  which  in  that  respect  is  the  same  as 


JULY  TERM,  1838.  95 


Richmond  v.  Richmond. 


ours.  I  shall  embrace  in  the  order  for  the  allowances  here  made, 
therefore,  that  either  party  be  at  liberty  to  apply,  upon  a  future 
change  of  circumstances  in  the  parties,  or  either  of  them,  for 
such  variation  or  modification  of  this  order  touching  said  allow- 
ances, as  those  future  circumstances  may  dictate  to  be  just. 

The  following  decree  was  accordingly  entered : — 
"  It  is  ordered,  adjudged  and  decreed,  that  the  defendant,  "Wal- 
ter M.  Itichmond,  pay  to  the  complainant,  Jane  Richmond,  or  to 
her  order,  during  her  natural  life,  or  until  the  future  order  of 
this  court  to  the  contrary,  the  annual  sum  of  two  hundred  and 
fifty  dollars,  payable  half  yearly ;  that  is  to  say,  the  sum  of  one 
hundred  and  twenty-five  dollars  on  the  thirtieth  day  of  October, 
and  one  hundred  and  twenty-five  dollars  on  the  thirtieth  day  of 
April,  in  each  and  every  year,  commencing  with  the  day  of  the 
date  hereof,  the  same  being  considered  and  deemed  a  suitable 
allowance,  having  regards  to  the  circumstances  of  the  parties  re- 
spectively, for  her  support  and  maintenance ;  and  that  the  de- 
fendant, "Walter  M.  Richmond,  do  within  thirty  days  after  ser- 
vice upon  him  or  his  solicitor,  of  a  copy  of  this  decree,  give  such 
reasonable  security  for  the  payment  of  said  annual  sum  of  two 
hundred  and  fifty  dollars,  as  shall  bo  approved  of  by  George  P. 
Molleson,  esquire,  one  of  the  masters  of  this  court,  for  the  punc- 
tual payment  of  said  sum,  at  the  times  above  specified;  and 
upon  his  neglect  or  refusal  to  give  such  reasonable  security  as 
shall  be  required  by  said  master,  within  the  time  so  specified,  or 
upon  his  default,  and  that  of  his  surety,  in  case  such  surety  shall 
be  given,  to  pay  such  annual  sum  at  the  times  when  by  this  de- 
cree the  same  may  fall  due,  as  above  mentioned,  that  the  com- 
plainant be  at  liberty  to  apply  to  this  court  to  award  and  issue 
process  for  the  immediate  sequestration  of  the  defendant's  per- 
Bonal  estate,  and  the  rents  and  profits  of  his  real  estate,  and  to 
appoint  a  receiver  thereof,  according  to  the  statute  in  such  case 
made  and  provided,  or  such  other  process  as  this  court  may,  un- 
der tl:e  circumstances,  deem  equitable  and  just,  and  may  be 
consistent  with  the  power  and  authority  of  the  court. 


96  CASES  IN  CHAXCEET, 


Richmond  v.  Richmond. 


"And  it  is  further  ordered,  adjudged  and  decreed,  that  the 

I  former  order  of  this  court,  touching  a  monthly  allowance  to  the 

i  said  complainant,  for  her  own  support  and  that  of  her  children, 

be  deemed  to  have  ceased  as  to  any  further  allowance  from  and 

after  the  date  of  this  decree. 

j  "And  it  is  further  ordered,  adjudged  and  decreed,  by  the  said 
chancellor,  pursuant  to  the  power  and  authority  vested  in  this 
court,  and  to  tho  statute  in  such  case  made  and  provided,  that 
the  eaid  defendant,  "Walter  M.  Richmond,  pay  to  the  said  com- 
plainant, Jane  Richmond,  or  her  order,  until  the  future  order  of 
this  court  to  the  contrary,  tho  further  annual  sum  of  three  hun- 
dred and  ninety  dollars,  payable  half-yearly,  that  is  to  say,  the 
sum  of  one  hundred  and  ninety-five  dollars  on  the  thirtieth  day 
of  October,  and  the  sum  of  one  hundred  and  ninety-five  dollars 
on  the  thirtieth  day  of  April,  in  each  and  every  year,  commencing 
with  the  day  of  the  date  hereof,  the  same  being  deemed  a  fit 
and  just  allowance  for  the  care  and  maintenance,  education  and 
clothing  of  her  said  children,  having  like  regard  to  the  circum- 
stances and  condition  of  the  oaid  defendant,  and  the  age  and 
condition  of  the  said  children,  and  for  the  support,  education, 
clothing  and  maintenance  of  said  children.  And  that  the  said 
defendant  give  such  further  reasonable  security  as  shall  in  like 
manner  be  approved  of  by  the  said  George  P.  Molleson,  esquire, 
master  as  aforesaid,  for  the  punctual  payment  of  the  said  last 
mentioned  annual  sum  of  three  hundred  and  ninety  dollars  at 
the  times  above  specified,  which  security  shall  be  given  within 
thirty  days  after  the  service  of  a  copy  of  this  decree  on  said  de- 
fendant or  his  solicitor.  And  on  his  neglect  or  refusal  to  give 
such  reasonable  security  as  shall  be  required  of  him  by  the  said 
master,  within  the  time  so  limited,  or  upon  default  of  said  defend- 
ant and  his  surety  to  pay  the  said  last  mentioned  annual  sum, 
at  the  times  and  in  the  manner  last  above  mentioned,  that  the 
said  complainant  be  at  liberty  in  like  manner  to  apply  to  this 
court  to  award  and  issue  process  for  the  immediate  sequestration 
of  the  property  and  estate  of  said  defendant,  to  enforce  such  pay- 
ment, or  for  such  other  process  as  may  by  said  court  be  deem- 


JULY  TERM,  1838.  97 


Richmond  v.  Richmond. 


ed  proper,  and  shall  be  consistent  with  the  power  and  authority 
of  this  court. 

.  "  And  it  is  further  ordered,  adjudged  and  decreed,  that  this  de- 
cree shall,  from  the  date  thereof,  be  a  lien  upon  the  personal  and 
'real  estate  of  said  defendant,  in  the  state  of  Kew  Jersey,  and  ; 
that  a  copy  thereof  be  forthwith  served  upon  the  said  defendant  or 
his  solicitor ;  and  that  either  party  be  at  liberty  to  apply,  upon  a 
future  change  of  circumstances  in  the  parties,  or  either  of  them, 

for  such  variation  or  modification  of  this  order  and  decree,  touch- 
i 

ing  the  said  allowance  for  alimony  and  maintenance,  and  for  the 
support,  education,  care  and  clothing. of  said  children,  as  such 
future  circumstances  may  dictate  to  be  just  and  equitable. 

"  And  it  is  further  ordered,  adjudged  and  decreed,  that  the  said 
defendant  pay  to  the  said  complainant  all  her  costs  which  have 
accrued  in  the  prosecution  of  this  suit,  to  be  taxed  by  the  clerk 
of  this  court,  and  that  the  said  complainant  have  execution 
therefor,  according  to  the  course  and  practice  of  this  court :  and 
also,  that  the  said  complainant  be  at  liberty  to  apply  to  this  court 
for  any  further  order  and  direction  that  may  be  necessary  and 
proper,  to  carry  into  full  effect  this  decree." 


Jons  LILXT  v.  MOSES  QDICK. 

Where  a  lost  mortgage  has  been  established,  by  a  decree  of  the  court,  as  a 
val  d  and  subsisting  incnmbrance,  the  subsequent  finding  of  the  mortgage 
in  the  hands  of  a  third  person,  cancelled,  without  farther  evidence,  will  not 
vary  the  case  nor  induce  the  court  to  alter  the  decree. 

Tearing  off  the  seals  of  a  mortgage,  or  even  its  entire  destruction,  by  an  tm- 
i      authorized  person,  will  not  cancel  it.    It  must  be  cancelled  by  consent  of 
the  owner. 

Tins  was  a  bill  of  review.     On  the  10th  of  July,  1824,  Mo- 

'ses  Quick,  the  defendant  in  this  cause,  filed  a  bill  in  the  court 

of  chancery  of  New-Jersey,  for  the  foreclosure  of  a  mortgage 

given  to  him  by  George  Johnson  and  Eliza  his  wife.     The  bill 

14 


98  CASES  IN  CHANCERY, 

Lilly  v.  Quick. 

charged,  that  the  mortgage  bore  date  on  the  17th  of  March, 
1813,  and  was  given  to  secure  the  payment  of  a  bond  bearing 
even  date,  given  by  Johnson  to  Quick,  in  the  penal  sum  of  two 
thousand  dollars,  conditioned  for  the  payment  of  one  thousand 
dollars,  with  interest,  on  the  first  of  May,  1814,  and  that  it  was 
duly  acknowledged  and  recorded.  The  bill  further-charged,  that 
the  bond  and  mortgage  had  been  mislaid  and  lost,  and  could  not 
be  found  :  that  the  principal,  together  with  a  large  arrear  of  in- 
terest, remained  due  to  the  complainant ;  and  that  the  mortgage 
had  become  absolute  at  law.  It  further  charged,  that  John 
Beaumont  had?  recovered  ,a  judgment,  which  was  a  lien  upon  the 
premises,  subsequent  to  the  complainant's  mortgage,  and  that 
the  equity  of  redemption  had  been  conveyed  from  Johnson  the 
mortgagor,  and  by  sundry  mesne  conveyances  had  become  vest- 
ed in  John  Lilly,  who  was  made  one  of  the  defendants  in  the 
bill.  The  bill  contained  the  usual  prayer  .for  foreclosure  and 
sale  of  the  mortgaged  premises. 

To  this  bill,  George  Johnson  and  John  Lilly  filed  a  joint  and 
eeveral  answer,  whereby  they  admitted  the  giving  of  tho  bond 
and  mortgage,  as  charged  in  the  bill,  but  insisted  that,  on  tho 
19th  of  June,  1815,  Johnson  and  wife  sold  and  conveyed  the 
mortgaged  premises,  subject  to  Quick's  mortgage,  to  one  Caro- 
line Branham,  for  one  thousand  four  hundred  and  fifty  dollars; 
that  subsequently  Johnson,  in  pursuance  of  an  agreement  be- 
tween him  and  said  Caroline  Branham,  gave  his  note  to  Quick, 
(the  complainant,)  for  the  balance  due  on  his  bond,  took  up  the 
bond  and  mortgage,  and  cancelled  them  by  tearing  off  his  own 
and  his  wife's  name ;  that  he  intended  to  take  the  mortgage  to 
the  office  to  be  cancelled  of  record,  but  that  it  was  mislaid  by 
accident  and  could  not  be  found.  It  is  further  alleged  in  the 
answer,  that  Lilly  was  afterwards  employed  by  Caroline  Bran- 
liain  as  her  agent,  to  see  that  the  mortgage  was  cancelled  ;  that 
he  saw  the  mortgage  in  Johnson's  possession  cancelled ;  and  that 
Quick  repeatedly  admitted  that  the  mortgage  had  been  taken  up, 
.and  promised  Lilly  that  it  should  be  cancelled  upon  the  record. 

The  cause  came  on  for  final  hearing  before  chancellor  Yroom, 


JULY  TERM,  1838.  CO 

Lilly  v.  Q  ,ick. 

upon  the  bill,  answer,  replication  and  proofs ;  and  it  appearing  to 
the  chancellor  that  the  bond  and  mortgage  were  duly  executed, 
that  a  part  of  the  monies  intended  to  be  secured  thereby  still 
remained  unpaid,  that  the  bond  and  mortgage  had  been  lost  or 
destroyed,  and  another  bond  and  mortgage  made  by  Johnson  to 
the  complainant  on  other  property  which  proved  to  be  unavail- 
ing, but  that  the  complainant  had  not  agreed  to  give  up  his  ori- 
ginal mortgage,  or  to  relinquish  his  lien  upon  the  mortgaged 
premises ;  and  that  the  taking  of  the  subsequent  bond  and  mort- 
gage was  not  an  extinguishment  of  the  lien  and  incumbrancc 
of  the  original  mortgage  upon  the  premises  therein  mentioned ; 
on  the  ICth  of  October,  1839,  a  final  decree  was  made,  estab- 
lishing the  original  mortgage  as  a  valid  and  subsisting  lien  upon 
the  premises  therein  contained. 

John  Lilly,  one  of  the  defendants,  obtained  an  order  for  re- 
hearing in  said  cause,  and  also  by  permission  of  the  court  filed 
a  bill  of  review,  on  the  ground  of  the  discovery  of  new  matter 
since  the  decree  in  the  original  cause.  The  matter  was  heard 
upon  the  order  for  the  reliearing,  and  also  upon  the  bill  of  review, 
at  the  came  time. 

Simpson,  and  TFeT&zmsow,  for  complainant. 


THE  CnjuffCELLOE.  Chancellor  Vrooin,  at  October  term, 
1830,  made  a  decree  in  favor  of  Moses  Quick,  upon  a  bill 
filed  by  him,  establishing  us  a  valid  and  subsisting  lien,  a 
mortgage  given  by  the  defendants,  George  Johnson  and  wife,  to 
the  complainant,  the  equity  of  redemption  in  which  mortgage 
that  bill  sought  to  foreclose,  John  Lilly,  one  of  the  defend- 
ants, feeling  liimsclf  aggrieved  by  tho  decision  of  the  chan- 
cellor, filed  a  petition  and  obtained  the  order  of  the  court  for  a 
rehearing  in  said  original  cause,  lie  also,  by  permission  of 
the  court,  instituted  this  suit,  to  review  the  decree  made  in 
the  original  action,  on  the  ground  of  new  proof  which  had 


100  CASES  DT  CHANCERY, 

Lilly  v.  Quick. 

come  to  light  after  the  decree  was  made.  I  am  to  consider.the 
case,  then,  upon  the  order  for  a  rehearing  in  the  original  action, 
and  upon  the  bill  of  review,  which  presents  the  whole  subject  at 
a  single  view. 

The  case  turns  upon  a  question  of  fact.  The  bond  and  mort- 
gage, which  are  the  subjects  of  controversy,  the  complainant 
alleges  he  lost  or  mislaid ;  while  the  defendant  insists  they  were 
given  up  by  him  to  be  cancelled.  As  the  evidence  shall  satisfy 
the  mind  on  this  disputed  matter,  so  must  the  decision  of  the 
court  be.  Chancellor  Yroom  has  gone  carefully  over  all  the  evi- 
dence, and  given  it  a  very  fair  and  just  consideration.  I  have  be- 
stowed on  the  evidence,  and  the  opinion  of  the  chancellor,  all  the 
care  and  attention  in  my  power,  and  I  do  not  see  how  it  is  pos- 
sible to  come  to  any  other  conclusion  upon  the  case  as  it  stood 
before  him,  than  that  at  which  he  arrived.  As  that  opinion  is  a 
very  full  one,  going  into  the  evidence  minutely,  it  would  be  la- 
bor lost  to  repeat  the  views  there  expressed. 

From  the  whole  evidence,  I  have  come  to  the  following  con- 
clusions : — 

1.  That  the  mortgage  was  never  in  good  faith  given  up  by 
the  complainant  to  bo  cancelled.    He  no  doubt  repeatedly  declar- 
ed his  willingness  to  have  it  cancelled,  if  Johnson  would  pay  off 
the  debt  to  Ilolcomb,  which  was  then  the  only  difficulty  in  the 
way.    It  would  be  out  of  the  ordinary  course  of  events  to  sup- 
pose, that  a  man  who  had  become  bound  for  the  debts  of  anoth- 
er, and  had  the  caution  to  require  as  his  indemnity  a  mortgage 
on  his  property,  would  relinquish  that  security  voluntarily,  and 
that  without  taking  at  the  time  even  a  note  or  any  other  evidence 
of  the  debt  due  him.     Such  might  have  been  the  case,  but  it  is 
altogether  improbable. 

2.  The  evidence  of  George  Johnson  is  no  way  satisfactory. 
Upon  the  cross-examination  it  is  manifest  that  his  recollection  of 
the  whole  transaction  is  very  little  to  be  depended  on.    He  ad- 
mits that  when  the  mortgage  was  given  up,  he,  Johnson,  agreed 
to  take  up  the  bond  and  mortgage  of  Ilolcomb.     He  says  he  im- 
mediately tore  the  names  almost  off  the  papers,  and  yet  when 


JULY  TEKM,  1838.  101 

Lilly  v.  Quick. 

the  papers  are  found,  no  part  of  the  names  are  torn  off  at  all. 
He  says,  too,  that  he  then  thought  tearing  off  the  names  was 
sufficient  to  destroy  it.  This  witness  then  admits,  that  about 
six  months  after  this,  Quick  became  uneasy,  and  he  gave  him 
other  security,  that  Quick  came  to  his  house  several  times  to 
find  the  old  mortgage.  If  that  mortgage  was  really  cancelled, 
what  could  have  made  him  so  anxious  about  it  ?  The  truth  is, 
I  have  do  doubt,  that  Johnson  had  the  old  mortgage,  but  never 
upon  the  fair  agreement  of  the  complainant,  unconditional,  that 
it  should  he  cancelled.  As  to  giving  the  new  security,  nothing 
could  be  more  natural.  He  had  lost  his  papers,  and  he  no  doubt 
considered  the  loss  of  the  papers  as  fatal — that  there  was  an  end 
to  that  security,  and  he  called  for  other.  This  would  not  defeat 
his  claim  on  the  old  mortgage  unless  it  was  so  agreed,  and  that 
upon  all  the  authorities  cited.  The  security  was  of  no  higher 
character,  and  unless  expressly  taken  with  an  understanding 
that  the  first  should  be  put  an  end  to,  cannot  affect  it,  even 
though  the  complainant  at  the  time  may  have  supposed  all  se- 
curity under  it  was  gone.  I  was  struck  with  the  evidence  of 
Elnathan  Stevenson,  a  witness  called  by  the  defendant,  on  this 
subject  This  gentleman  was  called  upon  to  write  the  new  bond 
and  mortgage  which  were  given  by  Johnson  to  Quick  in  1821 ; 
and  complainant  then  said  he  had  held  a  mortgage,  but  it  was 
lost,  or  could  not  be  found,  or  something  to  that  effect.  He  says 
this  new  mortgage  was  taken  in  place,  as  he  understood,  of  the 
other.  But  was  it  understandingly  and  plainly  agreed  by  Quick 
to  relinquish  any  claim  he  might  have  on  the  old  mortgage  ?  No 
witness  says  so. 

3. 1  consider  the  distinct  and  plain  acknowledgment  in  writing 
made  by  George  Johnson,  at  the  office  of  Mr.  Saxton,  as  im- 
portant. This  is  the  main  witness  relied  on  by  the  defendant  to 
prove  that  these  papers  were  cancelled,  and  yet  by  that  paper,  on 
the  5th  of  January,  182-i,  he  declares,  in  a  formal  instrument 
of  writing,  drawn  up  and  executed  under  his  hand  and  seal,  in 
the  presence  of  two  witnesses,  that  he  is  informed  and  believes 
that  the  said  bond  and  mortgage  have  been  lost  or  mislaid,  and 


102  CASES  IX  OI1ANCET.Y, 

Lilly  v.  Quick. 

were  in  full  force  and  effect  as  a  security  for  the  sum  of  five  hun- 
dred dollars.  This  writing  was  signed  just  before  the  original 
bill  was  filed,  and  after  the  second  bond  and  mortgage  were 
drawn  by  Elnathan  Stevenson.  I  see  no  circumvention  or  fraud 
in  obtaining  this  paper.  The  complainant  had  learnt  that  tho 
loss  of  a  mortgage  was  not  a  loss  of  the  security,  -if  that  fact 
could  be  proved,  and  before  fining  a  bill  he  obtained  the  acknow- 
ledgement of  the  mortgagor  that  it  was,  as  he  believed  and  was 
informed,  lost  or  mislaid,  and  was  at  all  events  in  full  force. 
The  subscribing  witness,  Mr.  Bartles,  declares  that  the  paper 
was  read  over  to  Johnson  before  it  was  executed,  and  that  ho 
witnessed  it  at  his  request.  On  his  examination,  Johnson  pro- 
fesses not  to  know  what  he  signed  at  Mr.  Saxton's  office.  IIo 
.recollects  its  being  read  over  to  him,  and  upon  the  paper  being 
again  shown  and  read  in  his  hearing  on  his  examination,  he  says 
that  is  something  like  what  was  said  at  the  time  he  signed  it. 
"When  he  stated  in  the  paper  that  the  mortgage  was  lost,  he  says, 
he  did  not  mean  Quick  had  lost  it,  but  that  it  was  lost  after  it 
came  into  his  possession.  What  reliance  can  be  placed  on  this 
witness,  upon  such  contradictory  statements  ?  To  say  tho  least, 
it  is  not  that  kind  of  evidence  upon  which  an  important  decree 
of  this  court  should  be  founded.  This  paper  has  been  objected 
to,  however,  by  doctor  Lilly's  counsel,  because  it  was  signed  by 
Johnson  after  Lilly's  title  to  the  property  was  acquired,  and  there- 
fore cannot  affect  his  interest.  It  must  be  recollected  that  John- 
son is  the  witness  of  tho  defendant,  Lilly,  and  this  paper  is, 
therefore,  competent^  if  for  no  other  purpose,  to  contradict  tho 
statement  now  made  by  the  witness,  and  to  showthat  he  has  held 
different  language  on  this  subject  at  different  times. 

4.  That  although  it  is  not  necessary  that  I  should  be  able  to 
satisfy  myself  how,  or  when,  tliis  mortgage  came  out  of  com- 
plainant's hands,  so  long  as  I  am  clear  that  he  never  gave  it  up 
to  be  cancelled,  yet  it  would  be  very  desirable  to  do  so.  It  is  most 
probable,  to  my  mind,  that  the  papers  were  lost  at  the  time  men- 
tioned in  the  testimony  of  Andrew  "Wilson.  The  parties  had 
both  been  drinking ;  they  went  to  stay  at  Johnson's  all  night, 


JOLT  TERM,  1833.  103 


Lilly  v.  Quick. 


and  it  is  quite  probable  they  could  not  Lave  told  in  the  morning 
•with  precision  what  Lad  taken  place  the  night  before.  Johnson, 
in  his  evidence,  declares  it  was  at  his  house  that  the  mortgage 
•was  given  up  to  him. 

Being  thus  satisfied  with  the  decision  made  by  the  chancellor 
in  the  original  cause,  it  remains  to  see  what  effect  is  to  be  given 
to  the  new  proof  discovered  since  the  decree.  That  proof  is  no- 
thing more  nor  less  than  finding  the  mortgage  itself,  in  the  hands 

O  ^->  O     C?  ' 

of  Asher  Lambert.  This  gentleman  has  been  examined,  and 
states  that  he  found  the  mortgage  in  the  same  situation  in  which 
ho  exhibits  it,  among  the  papers  of  Cornelius  Coriell,  deceased, 
upon  whose  estate  the  witness  administered.  •  He  saw  it  first  in 
1824,  but  not  thinking  it  of  any  consequence,  never  mentioned 
it  to  docter  Lilly  until  the  May  preceding  the  time  of  his  exam- 
ination. How  this  mortgage  came  among  the  papers  of  Mr.  Co- 
riell, does  not  appear  from  any  thing  except  hearsay  evidence, 
which  was  properly  objected  to,  and  must  be  overruled.  Tho 
only  other  witness  examined  under  the  bill  of  review,  is  Emley 
Holcomb.  His  testimony  sheds  no  light  on  the  case  as  I  can  per- 
ceive, stript  as  it  must  be  of  mere  hearsay  evidence.  There  is 
nothing  new,  therefore,  in  the  case,  except  the  finding  and  pro- 
duction of  the  mortgage ;  but  how  it  came  at  Mr.  Coriell's  does 
not  appear.  "When  the  mortgage  is  produced,  the  seals  are  torn 
off,  but  the  signatures  remain  on  it.  We  are  left  as  much  in  tho 
dark  as  ever.  The  tearing  off  the  eeals,  by  an  unauthorized 
person,  will  not  cancel  it,  nor  indeed  its  entire  destruction.  It 
must  bo  given  up  and  cancelled  by  consent  of  the  owner.  Tho 
mortgage  Las  long  been  out  of  his  possession,  and  the  same  hand 
that  would  improperly  retain  a  lost  instrument,  could  take  off  tho 
seals.  In  fact,  Johnson  swears  that  he  tore  the  names  off  Lim- 
.self.  I  make  no  question  that  Mr.  Coriell  received  the  paper 
fairly  so  far  as  he  was  concerned,  but  for  what  object,  or  from 
whom,  is  not  shown.  It  would  be  natural  to  look  for  a  paper 
of  this  kind,  given  up  to  be  cancelled,  in  the  hands  of  the  mort- 
gagor, especially  if  he  took  it  up ;  but  here  it  is  found  in  the 
hands  of  a  stranger. 


104  CASES  IK  CHANCERY, 

Lilly  v.  Quick. 

I  am  clearly  of  opinion,  upon  the  whole  case,  that  the  weight 
of  evidence  is  in  favor  of  the  mortgage,  and  that  it  has  been 
rightly  adjudged  a  valid  and  subsisting  lien  on  the  mortgaged 
premises. 

Upon  the  original  suit,  therefore,  I  see  no  reason  to  disturb 
the  decree  mado  by  chancellor  Yroom ;  and  as  the  bill  of  review 
shows  no  new  matter  which  can  vary  this  result,  this  bill  must 
be  dismissed  with  costs. 
Bill  dismissed 

CITED  in  Trenton  BTcy,  Co.  v.  Woodruff^  1  Gr.  Ch.  326 ;  Harrison's  Ad. 
v.  Johnson.  3  C.  E.  Gr.  43-1 ;  Freeholders  of  Middlesex  v.  Thomas,  5 
0.  E.  Gr.  42 ;  Dudley  v.  Bergen,  8  G.  E.  Gr.  400. 


STEPHEN  VREELAND  v.  JOSEPH  LOUBAT  and  FRANCIS 

COTTENETT. 

The  mortgagor  having  disposed  of  the  equity  of  redemption,  and  having  no 
interest  in  the  mortgaged  premises,  is  not  a  necessary  party  to  a  bill  for 
foreclosure. 

THE  bill  in  this  cause  was  filed  for  foreclosure  of  the  equity 
of  redemption,  and  sale  of  the  mortgaged  premises.  The  de- 
fendants were  the  purchasers  of  the  equity  of  redemption,  the 
mortgagor  having  disposed  of  his  interest  in  the  premises  to  them. 
The  mortgagor  rras  not  a  party.  The  defendants  demurred  for 
want  of  parties.  The  cause  came  on  for  hearing  upon  the  de- 
murrer. 

I.  H.  Williamson,  for  complainant. 

J.  D.  Miller,  for  the  defendants. 

For  the  complainant  it  was  contended,  that  the  mortgagor, 
having  parted  with  his  intertst  in  the  premises,  was  not  a  neces- 
sary or  proper  party  to  the  bill.  The  proceeding  is  in  rem.  Ho 
cannot  with  safety  bo  made  a  party.  If  it  appear  upon  the  face 
of  the  bill  that  the  mortgagor  has  no  interest,  ho  may  demur ;  if 
otherwise,  he  may  answer,  showing  that  he  has  no  interest,  and 
subject  the  complainant  to  costs. 


JULY  TERM,  1838.  105 


Vreeland  v.  Loubat  et  al. 


THE  CHANCELLOR.    It  has  been  usual  to  make  the  mortgagor, 
•who  has  parted  with  the  equity  of  redemption,  a  defendant  to  a 
bill  for  foreclosure,  but  he  is  not  a  necessary  party.     The  pro- 
ceeding is  in  rem.    An  account  may  be  taken  without  him. 
There  is  no  reason  why  he  should  be  made  a  party. 
The  demurrer  must  be  overruled,  with  costs. 
CITED  in  Bruen  v.  Crane,  1  Gr.  ch.  348  /  Whittemore  v.   Coster,  3  Gr» 
eh.  438 ;  Savings  Ass.  v,  Vandervere,  3  Stock,  383 ;  Harrison's  Ad.  y. 
Johnson,  8  C.  E.  Gr.  425. 


Executors  of  FATTOUTE  v.  HAYCOCK  et  al. 

On  a  bill  for  foreclosure,  against  infants  and  others,  whero  any  of  the  de- 
lendants  have  answered,  the  complainant  cannot  enter  a  rule  of  course  to 
refer  the  cause  to  a  master,  except  by  consent  of  sach  defendants  as  have 
answered,  or  their  solicitor. 

THIS  was  a  bill  for  foreclosure.  Part  of  the  defendants  were 
infants.  One  of  the  other  defendants  had  answered,  and  a  de- 
cree, pro  confesso,  was  made  against  the  others  at  the  last  term. 
At  the  same  term,  the  clerk  of  the  court  was  appointed  guardian 
ad  litem  for  the  infant  defendants.  An  appearance  for  the  in- 
fants had  been  entered  by  the  guardian,  and  a  rule  of  course 
entered  in  the  clerk's  book  to  refer  the  cause  to  a  master.  Tho 
master  had  made  his  report,  and  the  cause  was  now  set  down  for 
final  hearing. 

E.  Van  Arsdale,  for  the  defendant  who  had  answered,  ob- 
jected to  the  hearing,  and  contended  that  the  proceeding  was 
irregular,  no  consent  in  writing  having  been  made  by  the  defen- 
dant against  whom  a  decree  had  not  been  made.  He  referred 
to  Rule  1C. 

A.  Armstrong,  for  the  complainant,  in  reply. 

THE  CHANCELLOR.  The  hearing  cannot  come  on.  The  rule  of 
reference  having  been  entered  without  the  consent  of  the  defen- 
dant who  has  answered,  the  proceeding  is  irregular.  The  former 


106  CASES  IN  CHANCERY, 

Executors  of  Faitouto  v,  Haycock  et  al. 

rule  must  be  vacated,  and  a  rule  now  entered,  referring  the 
cause  to  a  master. 


TAYLOR  et  al.  v.  GEORGE  C.  THOMAS  et  aL 

Notice  of  argument  left  at  the  solicitor's  dwelling-house,  in  his  absence,  is 

good  service. 

No;ice  good,  though  dated  on  Sunday. 
Exceptions  to  the  roaster's  report  must  be  filed  \nthia  «iglit  days. 

THIS  cause  was  set  down  for  a  final  hearing  upon  a  master's 
report.  The  report  was  filed  June  9th,  1838,  Exceptions  to 
the  report  were  filed  on  Monday,  June  18th,  nine  days  after  filing 
the  report.  On  the  same  day,  notice  of  final  hearing  was  left 
at  the  dwelling-house  of  the  solicitor  of  the  defendants,  during 
his  absence  at  Washington.  The  notice  was  dated  on  Sunday^ 
though  served  on  Monday, 

W.  Hoisted,  for  the  defendants,  objected  to  the  hearing — 

1.  Because  the  notice  was  illegal,  being  dated  on  Sunday. 

2.  Because  the  service  was  irregular. 

3.  Because  the  exceptions  to  the  master's  report  had  not  been 
disposed  of. 

lie  insisted  that  there  was  no  rule  of  the  court  requiring  ex- 
ceptions to  be  filed  within  eight  days. 

That  if  such  rule  exists,  yet  where  the  eight  days  expire  on 
Sunday,  exceptions  filed  on  the  ninth  day  are  in  time. 

That  if  exceptions  were  filed  a  day  too  late,  a  strict  rule  of 
practice  ought  not  to  be  enforced  to  the  prejudice  of  the  defend- 
ants' rights. 

THE  CHANCELLOR.  The  notice  of  hearing  is  good,  and  the 
service  regular.  The  exceptions  to  the  master's  report  are  filed 
too  late ;  nevertheless,  if  I  were  satisfied  of  merit  on  the  part  of 
the  defendants,  and  that  the  exceptions  wcra  not  intended  for 


JULY  TEEM,  1838.  107 


Taylor  et  al.  v.  Thomas  et  al. 


delay,  I  would  let  them  stand.      As  it  is,  the  exceptions  must 
be  overruled,  and  the  hearing  come  on. 

By  consent,  the  causo  was  heard  upon  exceptions  to  the  re- 
port, and  upon  final  hearing. 


At  this  term  the  chancellor  adopted  thft  following  GEITERAI 
RULE: — 

JSTo  other  causes  will  be  heard  at  a  special  term,  except  such 
as  are  set  down  by  consent  of  parties,  unless  ortherwis  especially 
ordered  by  the  court.  A  demurrer  will  not  be  overruled  at  a  spe- 
cial term,  nor  will  parties  be  permitted  V)  use  a  special  term  tc 
expedite  a  cause  out  of  the  usual  courret  YuxlsMs  by  consent. 


O  A  S  E  S 

ADIUDOED  nr 

THE  COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW-JERSEY. 
OCTOBEB  TEBM,  1838. 


JOHN  GEST  v.  SAMUEL  FLOCK  et  au 


Where  a  testator  by  his  will  devises  his  lard  to  tho  nse  of  his  wife  for  life, 
and  directs  that  it  shall  bo  sold  upon  the  marriage  or  death  of  the  wife,  and 
the  youngest  child  coming  of  age— upon  the  death  of  the  testator  the  fee 
rests  in  the  heirs. 

Whether  under  the  will  the  executors  hare  the  power  of  making  sale  or  not, 
unless  tho  lands  are  devised  to  them,  they  must  befora  the  sale  descend  to 
the  heirs  ;  and  having  so  descended,  the  heirs  have  the  power  to  transfer 
their  interests  in  the  lands,  BO  far,  at  least,  as  to  entitle  the  alienee  to  all 
their  rights,  whatever  disposit  on  may  afterwards  be  made  of  them. 

Where  a  party  has  obtained  a  decree  of  foreclosure,  under  which  the  mort- 
gaged premises  have  been  sold,  it  is  too  late  to  question  the  validity  of  the 
mortgage. 

It  is  not  a  substantial  objection  to  a  deed,  that  the  acknowledgement  bears  date 
before  the  deed  itself.  The  true  date  may  always  be  shown. 

Where  a  sale  is  directed  to  be  made  of  lands,  and  the  same  person  is  entitled 
to  the  lands  that  would  take  the  money  in  case  of  a  sale,  and  the  per  oa 
entitled  elects  to  take  land,  a  court  of  equity  will  not  disturb  that  election  or 
compel  a  sale. 

Tbe  giving  of  a  mortgage  by  the  person  entitled,  is  a  dear  election  on  his  part 

to  take  land. 
Tho  assignee  of  an  hen*,  or  person  claiming  an  interest  under  a  will,  baring 

an  opportunity  of  acquiring  a  full  knowledge  of  the  cordition  of  the  estate, 


OCTOBER  TERM,  1838.  109 


Gest  v.  Flock  et  nl. 


•will  stand  in  no  bettrr  pituaiion  iu  asking  the  interposition  of  this  court, 
I      than  the  heir  or  legatee  himself, 

BILL  filed  January  15th,  1835.  It  states,  that  Hendrick 
Schenck,  being  seized  in  fee  simple  and  possessed  of  certain  real 
and  personal  estate,  situate  in  the  township  of  Lawrence,  in  the 
county  of  Hunterdon,  "by  his  will,  bearing  date  on  the  13th  of 
June,  1810,  among  other  things,  gave,  devised,  and  bequeathed 
as  follows : — "  Item — I  give  and  bequeath  to  ray  wife  the  use  of 
all  my  lands  and  tenements,  during  her  natural  life,  she  making 
no  waste  or  destruction  thereon ;  but  if  she  should  marry  after 
my  decease,  my  will  is  that  she  receive  from  my  estate  the  lega- 
cy which  she  brought,  which  was  three  hundred  and  fifty 
pounds  ;  and  then  my  will  is  that  my  wife  move  off  the  premises, 
and  the  farm  then  to  be  rented  out  until  the  youngest  child 
comes  to  the  age  of  twenty-one  years.  Item — In  case  iny  wife 
accepts  the  said  bequest  in  lieu  of  her  dower,  my  will  is,  that 
after  marriage,  if  it  should  so  happen,  the  land  still  not  to  be 
sold  until  the  youngest  child  comes  of  age,  and  then  as  soon  as 
may  be  convenient.  And  also  my  will  is,  that  immediately  af- 
ter my  wife's  decease,  or  as  soon  as  may  be,  all  my  estate,  of 
every  description,  be  sold,  and  the  money  arising  therefrom  to 
be  equally  divided  amongst  my  children,  except  as  will  hereaf- 
ter appear ;  to  Robert  D.  Schenck,  Susan  Schenck,  Catharine 
Schenck,  Eliza  Ann  Schenck,  share  and  share  alike ;  and  to  my 
son  Albert  Schenck,  one  hundred  dollars  more  than  any  one  of 
iny  other  children."  That  on  the  28th  of  July,  1810,  the  tes- 
tator died,  seized  and  possessed  of  the  said  real  and  personal  es- 
tate, and  leaving  his  said  will  unrevoked  and  in  full  force.  That 
James  Hughes  and  Henry  Dye,  the  executors  therein  named, 
proved  the  will,  and  exhibited  an  inventory  and  appraisement  of 
the  personal  estate,  amounting  to  five  hundred  and  twelve  dol- 
lars and  ninety-six  cents.  That  the  testator  left  surviving  him, 
the  five  children  named  in  his  will,  to  wit,  Robert  D.,  Susan, 
Catharine,  Eliza  Ann  and  Albert,  and  his  widow,  Margaret 
Schenck.  That  the  widow  accepted,  in  lieu  of  her  dower,  the 
clevises  and  bequests  made  to  her  in  the  will ;  receiving  the  per- 


110  CASES  IK  CHANCERY, 


Gestv.  Flock  et  al. 


sonal  property,  and  entering  into  possession  of  the  lands  de-vised 
to  her.  That  she  never  married  after  the  death  of  the  testator. 
That  she  died  about  the  first  of  April,  1831 ;  and  that  Albert, 
the  youngest  child,  attained  the  age  of  twenty-one  during  the 
life-time  of  his  mother. 

The  bill  further  states,  that  the  said  Albert  Schenck,  on  the 
12th  of  March,  1831,  in  consideration,  among  other  things,  of 
six  hundred  and  forty-one  dollars,  to  him  in  hand  paid  by  the 
complainant,  executed  to  the  complainant  a  deed  of  assignment 
of  all  that  part,  share,  proportion  and  dividend  of  the  personal 
and  real  estate  of  the  said  Hendrick  Schenck,  which  theretofore 
became  due,  or  which  might  thereafter  descend  or  become  due 
and  payable  to  the  said  Albert ;  which  said  deed  was  afterwards 
duly  acknowledged  and  recorded  in  the  clerk's  office  of  the  coun- 
ty of  Ilunterdon.  It  insists  that  the  executors,  after  the  death  of 
the  widow,  and  the  youngest  child's  attaining  the  age  of  twenty- 
one  years,  were  bound  by  the  will  to  sell  the  lands  as  soon  as  it 
could  conveniently  be  done,  and  to  dispose  of  the  proceeds  ac- 
cording to  the  direction  of  the  will,  and  also  to  account  to  the 
legatees  or  their  lawful  assigns,  for  the  rents  and  profits  accruing 
after  the  death  of  the  widow.  That  the  lands  of  which  the  tes- 
tator died  seized  were  valuable  :  that  the  executors  might  at  va- 
rious tunes  have  disposed  of  them  advantageously ;  and  that 
they  ought  EC  to  have  done,  and  have  paid  Albert's  share  to  the 
complainant. 

The  bill  further  charges,  that  Samuel  Flock,  one  of  the  de- 
fendants, is  in  possession  of  the  lands  of  which  the  testator  died 
seized,  under  pretence  of  title  thereto,  and  that  he  refuses  to  ac- 
count to  the  complainant. 

The  bill  prays,  that  the  executors  may  be  compelled  to  exe- 
cute the  trust  reposed  in  them  by  said  will,  and  in  particular,  to' 
sell  all  the  testator's  real  estate,  and  to  pay  Albert's  share  to  the 
complainant ;  also  to  account  for  all  the  rents  and  profits  received, 
or  which  might  and  ought  to  have  been  received  therefrom,  since 
the  death  of  Margaret,  the  widow  of  the  testator,  and  to  pay 
Albert's  share  thereof  to  the  complainant.  That  Flock,  the  oth- 


OCTOBER  TERM,  1838.  Ill 


Gt  st  v.  Flook  et  nl. 


er  defendant,  may  be  compelled  to  discover  by  what  title  lie 
claims  the  premises,  and  to  account  for  the  rents  and  profits 
while  in  his  possession,  since  the  death  of  the  said  widow. 

The  executors  neglected  to  appear  or  answer,  and  a  decree, 
pro  confcsso,  was  taken  against  them.  Samuel  Flock,  alone, 
answered  the  bill. 

The  answer  admits,  with  few  exceptions,  the  material  facts 
charged  in  the  bill ;  but  states,  that  the  personal  estate  of  the 
testator  proving  insufficient  to-  pay  his  debts,  a  part  of  his  real 
estate  was  sold  for  that  purpose  by  his  executors,  under  an  order 
of  the  orphan's  court  of  the  county  of  Ilunterdon,  and  that  the 
Baid  defendant  became  the  purchaser  thereof.  That  Margaret 
Schenck,  the  widow  of  the  testator,  under  the  devise  to  her  in 
the  will  of  Ilendrick  Schenck,  remained  in  possession  of  the 
residue  of  his  real  estate,  consisting  of  a  farm  of  about  ninety- 
six  acres.  That  being  so  in  possession  of  said  real  estate,  and 
the  said  Albert  Schenck  having  attained  the  age  of  twenty-one 
years,  the  said  Margaret  and  Albert,  on  the  14th  of  October, 
1814,  by  deed  of  mortgage,  conveyed  all  their  right,  title  and 
interest  in  the  premises  to  the  said  Samuel  Flock,  to  secure  to  him 
the  payment  of  a  bond  of  four  hundred  dollars,  with  interest, 
bearing  even  date,  given  by  the  said  Margaret  and  Albert  to  the 
said  Samuel  Flock.  That  the  said  mort£*a£re  having  been  ac- 

*->    o  \j 

knowledged,  was  duly  recorded  in  the  clerk's  office  of  the  comity 
of  Iluntcrdon. 

The  answer  further  states,  that  the  principal  and  interest  of 
the  said  mortgage  remaining  unsatisfied,  the  said  Samuel  Flock 
obtained  a  decree  of  this  court,  bearing  date  on  the  2d  of  Janu- 
ary, 1821,  for  foreclosure  and  sale  of  the  said  mortgaged  prem- 
ises, by  virtue  of  which  decree  the  premises  were  afterwards  sold 
by  the  sheriff  of  Iluntcrdon,  struck  off  to  said  Samuel  Flock  for 
a  sum  less  than  the  amount  due  upon  the  mortgage,  and  con- 
veyed to  him  from  the  sheriff,  by  deed  dated  the  10th  of  May, 
1821.  That  the  said  Samuel  Flock  had  subsequently  procured, 
for  valuable  considerations,  from  all  the  other  children  and  heirs 
of  Ilendrick  Schenck,  releases  of  all  their  interest  in  the  said 


112  CASES  IN  CHANCERY, 


Gest  v.  Flock  et  al. 


real  estate,  by  virtue  whereof  he  became  seized  in  fee  of  the 
•whole  of  the  said  real  estate,  and  remained  in  the  peaceable  pos- 
session thereof,  from  the  date  of  the  sheriffs  deed  so  as  aforesaid 
made  to  him.  The  answer  insists  that  the  lands,  upon  the 
death  of  the  testator,  descended  to  his  children  and  heirs  at  law  ; 
that  they  had  full  power  to  mortgage,  release  or  convey  the 
same ;  that  a  complete  title  at  law  and  in  equity  had  become 
vested  in  the  defendant ;  and  that  the  executors  were  not  bound, 
nor  had  they  any  power  to  proceed  to  a  sale  of  the  said  real  es- 
tate. It  denies  all  combination  and  confederacy. 

Depositions  having  been  taken  by  both  parties,  the  cause  came 
on  for  hearing  at  July  term,  1838,  upon  bill,  answer,  replication 
and  proofs. 

Wilson  and  Southard)  for  complainant. 
JL  W.  Green  and  I.  H.  Williamson,  for  defendant. 

THE  CHANG  ELLOE.  The  complainant  claims  to  be  the  own- 
er, and  entitled,  under  an  assignment  and  transfer,  of  whatever 
interest  Albert  Schenck  took  under  the  will  of  his  father,  Hen- 
drick  Schenck,  deceased.  Samuel  Flock,  the  defendant,  also 
claims  to  bo  the  owner,  and  entitled  to  the  same  interest,  under 
a  mortgage  made  to  him  many  years  before  by  Albert  Schenck, 
which  mortgage  ho  foreclosed,  and  under  a  sale  became  the  pur- 
chaser of  the  premises.  Whether  this  interest  of  Albert  Schenck 
,in  his  father's  will,  was  of  such  a  character  or  not,  as  to  pass  by 
this  mortgage,  is  really  the  turning  question  in  the  cause.  It 
involves  the  true  construction  of  the  will  of  Uendrick  Schenck. 

The  testator,  Uendrick  Schenck,  died  in  thff  year  1810,  leav- . 
ing  real  and  personal  estate.  The  real  estate  consisted  of  a  farm 
situated  in  the  township  of  Lawrence,  in  the  county  of  Ilunter- 
don,  (now  Mercer),  in  this  state.  The  will,  after  making  cer- 
tain bequests  which  aro  immaterial  for  our  present  purpose  gives 
the  use  of  all  tho  testator's  lands  to  his  wife  during  her  natural 
life  unless  she  marry  again,  when  she  is  to  leave  the  farm,  and  it 


OCTOBER  TERM,  1838.  113 

Gest  v.  Flock  et  al. 

is  to  be  rented  until  the  youngest  cliild  comes  of  age.  The 
widow  never  married,  and  died  in  the  year  1832.  The  impor- 
tant clause  in  the  will  is  the  sixth,  and  is  in  the  following  words 
"  In  case  my  wife  accepts  the  said  bequest  in  lieu  of  her  dower, 
my  will  is  that  after  marriage,  if  it  should  so  happen,  the  land 
still  not  to  be  sold  until  the  youngest  child  comes  of  age,  and  then 
as  soon  as  may  be  convenient ;  and  also  my  will  is,  that  imme- 
diately after  my  wife's  decease,  or  as  soon  as  may  be,  that  all 
my  estate,  of  every  description,  be  sold,  and  the  money  arising 
therefrom  to  be  equally  divided  amongst  my  children,  except  as 
will  hereafter  appear :  to  Robert  D.  Schenek,  Susan  Schenck, 
Catharine  Schenck,  Eliza  Ann  Schenck,  share  and  share  alike ; 
and  to  my  son,  Albert  Schenck,  one  hundred  dollars  more  than 
any  one  of  my  other  children." 

It  will  be  remarked  in  this  clause,  that  the  testator  does  not 
devise  his  estate  to  his  executors,  nor  does  he  nay  by  whom  it 
shall  be  sold.  It  is  a  general  direction  to  sell  it,  upon  the  mar- 
riage or  death  of  his  wife,  and  the  youngest  child  coming  of  age. 
The  object  in  selling,  is  plainly  nothing  more  than  to  distribute, 
the  proceeds  among  the  testator's  children.  What  became  of  the 
testator's  estate  at  his  death  ?  His  widow  had  the  life  estate,  but 
in  whom  did  the  remainder  vest  until  the  sale,  in  the  executors 
or  heirs  ?  It  clearly  vested  in  the  heirs.  Where  there  is  no  de- 
vise of  the  lands  to  the  executors,  but  a  naked  power  is  confer- 
red upon  them  to  sell,  until  such  sale  takes  place  the  right  vests 
in  the  heirs.  The  question,  whether  the  executors  were  the  per- 
sons intended  by  the  testator  to  make  the  sale,  or  whether  that 
power  belonged  to  the  heirs,  as  would  be  the  case  in  tho  absenco 
of  any  express  or  implied  appointment  of  the  executors  for  that 
purpose,  does  not  appear  to  me  material,  in  the  present  case,  to 
be  settled.  Whether  the  executors  had  tin's  power  or  not,  unless 
the  lands  are  devised  to  them,  they  must  in  the  mean  time 
descend  to  the  heirs,  and  having  BO  descended,  they  havo  tlio 
power  to  transfer  their  interest  in  them,  at  all  events,  so  far  as 
to  entitle  the  alienee  to  all  their  rights,  whatever  disposition 
should  afterwards  be  made  of  them.  Herbert  v,  &?r  of  Tutr 
1C 


114  CASES  IK  CHANCERY, 

Gest  v.  Flock  et  al. 

hilly  1  Saxton,  141 ;  11  Vesey,  jun.  496 ;  1  Gainers  Cases  in 
Error,  16. 

Had  the  complainant,  under  his  assignment,  been  clearly  en- 
titled to  Albert's  interest  in  his  father's  estate,  and  the  executors 
denied  their  power  to  sell,  in  that  event  the  settlement  of  the 
question,  whether  they  had  power  or  not,  must  have  been  im- 
portant ;  and  my  decided  impressions  are,  that  upon  a  fair  con- 
struction of  the  will,  the  power  to  sell  is  conferred  on  the  execu- 
tors, but  coupled  with  no  interest  which  can  prevent  the  legal 
title  from  vesting  in  the  heirs  at  law.  But  the  executors  have 
not  appeared  or  answered,  and  the  bill,  as  to  them,  has  been 
taken,  pro  confesso.  The  only  controversy  now  is  with  the  de- 
fendant, Flock,  upon  the  validity  of  his  mortgage. 

The  disputes  which  have  arisen  upon  the  question,  whether 
executors  have  a  mere  naked  power  to  sell,  or  a  power  coupled 
with  an  interest,  have  been  to  decide  whether  if  one  of  the  ex- 
ecutors die,  the  survivor  could  sell.  At  common  law  it  is  well 
settled,  that  a  surviving  executor  may  sell  on  a  power  coupled 
with  an  interest,  but  not  on  a  mere  naked  power.  The  statutes 
of  this  state,  in  Rev.  Laws,  226  and  605,  have  settled  with  us 
that  question,  by  giving  the  surviving  executor  in  all  cases  pow- 
er to  sell,  where  the  will  directs  a  sale  of  lands  by  executors. 

But  the  complainant's  counsel  object  to  the  validity  of  Flock's 
mortgage,  from  matters  appearing  on  its  face.  1.  Because  it 
bears  date  the  14th  of  October,  1816,  and  yet  the  acknowledge- 
ment purports  to  have  been  made  prior  to  that  time,  and  on  the 
14th  of  June,  in  the  same  year.  2.  Because  of  certain  erasures 
and  obliterations.  It  is  a  sufficient  answer  to  these  objections 
to  say,  it  is  now  too  late  to  take  them,  since  the  defendent  has 
established  the  validity  of  this  mortgage  by  a  decree  of  this 
court,  under  which  he  became  a  purchaser  at  the  sheriffs  sale. 
This  decree  was  obtained  against  Albert  Schenck  himself,  and 
that  ten  years  before  the  complainant  pretends  to  have  had  any 
interest  in  the  questions.  There  is,  however,  nothing  substantial 
in  the  objections  themselves.  A  mistake  in  the  date  of  a  deed 
will  not  destroy  it ;  the  true  date,  the  time  of  its  actural  execu- 


OCTOBER  TEEM,  1S88.  315 


Gest  v.  Flock  et  al. 


tion,  may  always  be  proved.  It  is  manifest  no  fraud  was  in- 
tended, as  the  paper  could  never  have  been  examined  without 
being  detected.  The  erasures  are  made  so  as  to  leave  the  parts 
erased  plainly  to  be  read.  The  erasures  were  of  words  of  sur- 
plusage. It  would  seem,  also,  from  the  bill,  that  the  complainant 
be  lie  ved  Al  bert  to  be  under  twenty-one  years  of  age  at  the  time  of 
executing  the  mortgage ;  but  the  answer  and  proof  in  the  cause 
establish,  beyond  a  doubt,  that  he  was  of  full  age. 

I  consider  the  mortgage,  therefore,  good,  and  that  Albert  had 
such  a  vested  interest  at  the  time  as  might  be  passed  by  it,  in 
the  hinds  of  his  father. 

There  is  another  view  of  this  case  equally  fatal  to  the  com- 
plainant's pretensions.  "Where  a  sale  is  directed  to  be  made  of 
lands,  and  the  same  person  is  entitled  to  take  the  lands  that 
would  take  the  money  in  case  of  a  sale,  and  the  party  elects  to 
take  lands,  a  court  of  equity  will  not  disturb  that  election,  or 
compel  a  sale.  Osyood  v.  J^ranklin,  2  John,  C/t»  Hep.  21; 
Amlcr  v.  Amler,  3  Vesey,  583.  The  giving  of  the  mortgage 
by  Albert,  was  a  clear  election  on  his  part  to  take  land,  and  up- 
on no  principle  can  that  election  be  now  disturbed.  This  elec- 
tion, it  appears,  was  not  only  made  by  Albert,  but  by  the  whole 
of  the  testator's  family ;  for  they  all  conveyed  their  shares  to  the 
defendant,  Flock,  about  the  same  time  he  purchased  Albert's 
fihare  at  sheriff's  sale.  If  the  complainant  can  defeat  the  sale  of 
Albert's  share,  I  see  nothing  to  prevent  any  other  member  of  the 
family  now  from  milking  a  similar  transfer,  and  thus  deprive  the 
defendant  of  his  entire  interest  in  the  lands. 

The  complainant's  assignment  bears  date  in  1831,  fifteen 
years  after  the  date  of  the  mortgage ;  and  whether  it  was  a  cash 
purchase,  or  taken  as  security  for  an  antecedent  debt,  can  make 
no  difference.  From  the  evidence,  it  would  seem,  the  complain- 
ant was  desirous  to  make  it  appear  as  a  cash  purchase ;  for  the 
witnesses  to  the  assignment  say  they  saw  the  money  handed 
over.  This  was,  no  doubt,  mere  form  ;  for  in  the  body  of  the 
assignment  itself,  it  purports  to  be  taken  "in  payment  and  satis- 
faction of  certain  debts  and  demands  which  he  holds  against  the 


116  CASES  nsr  CHANCERY, 

Gest  T.  Flock  et  al. 

said  Albert  Schenck."  In  either  case,  the  transaction  was  fair 
and  just  on  the  part  of  the  complainant.  With  this  assignment, 
standing  in  the  place  of  Albert,  the  complainant  calls  upon  the 
executors,  in  this  suit,  to  account  to  him  for  the  testator's  estate, 
and  asks  a  decree  compelling  them  to  sell  the  lands  embraced  in 
the  mortgage  of  Flock.  Flock  purchased  and  went  into  posses- 
sion, under  the  sheriffs  sale,  in  1821.  Under  these  circum- 
stances, is  there  any  equity  in  the  prayer  of  the  complainant  ? 
Why  should  this  court  interpose  its  power  to  compel  a  sale  of 
these  lands  by  the  executors  ?  And  for  what  purpose  ?  To  de- 
prive the  defendant  of  land  which  he  purchased  in  good  faith, 
and  for  valuable  considerations,  and  give  the  proceeds  to  the  com- 
plainant, who  can  upon  no  principle  be  placed  on  better  ground 
than  the  defendant.  The  fact  that  Flock  had  recorded  in  tho 
office  of  the  clerk  of  the  county,  all  his  conveyances  for  the  pro- 
perty, and  had  been  for  so  many  years  in  the  peacable  posses- 
sion, was  enough  to  put  the  complainant  on  inquiry,  and  afford- 
ed ;him  a  fair  opportunity,  before  taking  the  assignment,  to  in- 
vestigate the  whole  situation  of  the  estate.  It  must  be  borne  in 
mind,  that  this  application  does  not  come  from  a  creditor  of  the 
testator,  seeking  a  just  demand  against  that  estate,  but  is  an  ef- 
fort by  an  assignee  of  one  of  the  heirs,  under  an  assignment 
made  in  1831,  by  the  aid  of  this  court,  to  compel  a  sale  of  the 
testator's  lands,  for  the  purpose  of  giving  such  assignee  the  pro- 
ceeds of  such  sale,  and  to  defeat  a  bona  fide  purchaser  of  those 
lands  under  a  mortgage  made  by  this  same  heir,  as  far  back  as 
the  year  1816.  Such  an  exercise  of  the  power  of  this  court 
would  work  manifest  injustice  and  wrong.  With  the  opportunity 
afforded  the  complainant  to  acquire  a  full  knowledge  of  the  con  ^ 
dition  of  this  estate,  I  can  place  him  in  no  better  situation  than 
Albert  himself  would  stand  in  if  he  was  asking  the  interposition 
of  the  court.  He  knew  he  had  long  since  conveyed  to  the  de- 
fendant, Flock,  and  received  his  money  for  the  land.  After  that, 
it  must  indeed  be  a  stern  necessity  that  would  induce  any  court 
to  aid  him  in  defeating  the  title  of  one  purchaser  of  his  property, 


OCTOBER  TERM,  1838.  117 

Gest  v.  Flock  etal. 

end  that,  too,  for  the  purpose  of  getting  twice  paid  for  the  same 
buds. 

In  every  view  which  I  have  been  able  to  take  of  this  case, 
whether  upon  the  dry  question  of  the  right  of  Albert  to  mortgage 
the  remainder  vested  in  him  under  the  will  of  his  father,  or  upon 
the  right  of  the  heir  to  elect  to  take  land  instead  of  money,  or 
upon  the  general  principles  of  equity  and  common  justice,  I  can 
BCC  no  ground  for  disturbing  the  defendant,  Flock,  in  the  enjoy- 
ment of  his  estate  in  the  lands  in  question. 

As  to  him,  therefore,  the  bill  must  be  dismissed,  with  costs. 

CITED  in  Drew  v.  Snowhill,  3  Zab,  450;  Scudder  v.  Stout,  2  Stock, 
362 ;  FluJce  v  Flule\  Exrs.  1  C.  E.  Gr.  480 ;  Eomain  v.  Hendrichori» 
Exrs.  9  C.  E,  Gr.  237. 


THE    TRENTON    BANKING    COMPANY    v.    THOMAS    L.    WOOD- 
BUFF  and  others. 

That  ckuse  in  the  charter  of  the  Trenton  Banking  Company  which  declares 
"  That  the  paid  corporation  shall  not  directly  or  indirectly,  deal  or  trade  in 
any  thing  except  bills  of  exchange,  promissory  notes,  gold  or  silver  bullion, 
or  in  tiie  sale  of  goods  which  shall  be  the  produce  of  its  lands,"  was  design- 
ed to  rcslr.iin  the  company  within  its  legitimate  sphere  of  banking,  and  to 
prevent  their  embarking  in  other  kinds  of  business.  The  company  mar, 
nevertheless,  receive  and  hold  bonds  and  mortgages  by  way  of  security  for 
debts  due  the  corporation  ;  and  in  the  absence  of  proof  to  the  contrary,  the 
court  will  presume  that  the  corporation  came  into  possession  of  such  secu- 
rities 1  iv, fully,  and  within  the  scope  of  their  chartered  powers. 

Where  a  bonl  and  mortg.ige  are  bequeathed  to  a  feme  covert,  for  her  use 
free  from  the  debts  or  control  of  her  husband,  and  the  husband  of  the  legatee 
being  the  obligor  in  th*  bond,  nnd  also  an  executor  of  the  will,  cancels 
each  bond  nnd  mortgage,  without  paying  the  same,  such  cancellation  ia  a 
gross  fraud,  not  only  upon  the  estate  committed  to  his  charge,  but  also  up 
on  the  rights  of  the  wife,  against  the  effects  of  which  this  court  will  inter- 
fere for  Lcr  protection.  Eut  it  seems  that  in  such  case,  when  the  testator 
Lad  by  the  very  act  of  constituting  h.s  debtor  an  executor,  placed  it  in  his 
power  to  practice  a  fraud  upon  innocent  parties,  the  court  will  not  inter- 
pose to  protect  the  rights  of  a  wifr,  by  cs  ablishing  the  cancelled  mortgage 
to  t  e  prejudice  of  subsequent  mortgages  without  notice. 

The  mere  lict  of  the  destruction  of  a  bond  or  other  instrument,  without  au- 
tUority,  can  never  be  set  np  against  ihe  right  of  him  who  has  the  beneficial 
interest. 


118  CASES  IK  CHANCERY, 

Trenton  Banking  Co.  v.  Woodruff  et.  al. 

It  is  one  of  the  plainest  and  most  common  grounds  cf  equity  jurisdiction,  to 
guard  innocent  parties,  ami  especially  married  woman  and  infants,  against 
fraud  and  imposition.  Such  protection  will  be  afforded  to  a  married  woman 
against  her  husband. 

The  cancellation  of  a  mortgage  on  tie  record,  is  only  prima  facie  evidence  of 
its  discharge,  and  leaves  it  open  to  the  party  making  such  allegation,  to 
prove  that  it  was  made  by  accident,  n.istake  or  fraud. 

On  such  proof  being  made,  the  mortgage  will  be  established,  even  against 
subsequent  mortgages  without  notice. 

The  rule  is  now  well  settled,  that  a  trust,  either  of  real  or  personal  estate,  may 
bo  created  by  a  direct  gift  or  bequest  to  the  use  of  the  wife,  without  the  in- 
tervention of  trustees,  so  as  to  prevent  the  husband's  enjoyment  of  the  es- 
tate ;  nnd  equity  will  sustain  such  trust,  and  declare  the  husband  a  mere 
trustee  for  the  use  of  the  wile. 

A  trustee  cannot  transfer  a  trust  estate  to  his  own  use,  nor  will  he  be  permit 
ted  to  make  any  profit,  gain  or  advantage  to  himself,  out  of  the  tra^t  estate 
in  his  h  aids.  .  , 

A  notice  to  the  cashier  is  notice  to  the  bank.  He  is  the  authorised  agent  of 
the  corporation  for  all  purposes  within  the  sphere  of  their  business, 

A  husband  cmnot  be  a  witness  for  his  wife,  on  a  question  touching  her  sepa- 
rate estate. 

Where  the  defendants  in  a  cause,  by  their  answer,  setup  a  cancelled  mortgage 

•  as  a  subsisting  lien  upon  the  mortgaged  premises  meutiorcd  in  the  bill  of 
complaint,  it  is  incumbent  on  them  to  show  that  the  money  wns  not  paid, 
and  thati  the  cancellation  was  made  wrongfully.  The  complainants  are  not 
bound  to  prove  the  fact  of  payment. 

J?he  awarding  of  an  issue  rests  in  the  discretion  cf  the  court,  and  the  powei 
should  bo  sparingly  exercised. 

On  tlio  24th  of  September,  1832,  tlic  complainants  filed  a  bill 
for  foreclosure,  against  Thomas  L.  "Woodruff  and  Ann,  his  wife, 
George  Woodruff  and  Zachariah  Kossell,  trustees  of  the  said  Ann 
Woodruff.  The  bill  states,  that  on  the  second  day  of  March, 
1821,  Thomas  L.  "Woodruff  and  Ann  his  wife,  to  secure  the  pay- 
ment of  a  bond  bearing  date  the  same  day,  given  by  Thomas  L. 
Woodruff  to  Zachariah  Rossell,  for  one  thousand  seven  hundred 
dollars,  payable  on  the  2d  of  March,  1822,  with  interest,  exe- 
cuted to  Rossell  a  mortgage  upon  the  undivided  half-part  of  a 
house  and  lot  on  the  north  side  of  Second-street,  in  the  city  of 
Trenton,  which  said  mortgage  was  duly  acknowledged  and  re- 


OCTOBER  TEEM,  1S3S.  110 


Trentou  Banking  Co.  v.  Woodruff  et  al. 

corded  in  the  clerk's  office  of  the  county  of  Ilunterdon,  on  thfc 
day  of  its  execution ;  and  on  the  28th  of  January,  1832,  was 
assigned  by  said  Rossell  to  the  complainants.  That  the  said 
Thomas  L.  Woodruff  and  Ann  his  wife,  "  in  order  to  secure  the 
payment  of  all  and  every  promissory  note  then  drawn  or  there- 
after to  be  drawn  by  the  said  Thomas  L.  Woodruff,  and  endors- 
ed by  Elias  D.  "Woodruff,  and  discounted  at  any  bank  in  the  state 
of  New-Jersey,"  executed  to  the  said  Elias  D.  Woodruff,  a  mort- 
gage upon  the  same  premises,  bearing  date  on  the  17th  of  Octo- 
ber, 1823,  which  was  duly  acknowledged,  and  on  the  28th  day 
of  the  same  month  of  October  was  recorded  in  the  clerk's  offico 
of  the  county  of  Ilunterdon.  That  the  said  Thomas  L.  Wood' 
ruff  afterwards  drew  two  promissory  notes,  amounting  to  fivo 
thousand  four  hundred  dollars,  which  were  endorsed  by  the  said 
Elias  D.  Woodruff,  and  discounted  by  the  complainants,  for  tho 
use  of  the  drawer,  the  proceeds  of  which  were  received  by  him. 
That  on  the  10th  of  October,  1834,  Elias  D.  Woodruff  died ; 
and  that  on  the  25th  of  August,  1827,  the  last  mentioned  bond 
and  mortgage  were  assigned,  bygone  of  his  executors,  to  tho 
complainants.  That  on  the  1st  of  September,  1820,  the  said 
George  Woodruff  obtained  a  judgment  in  tho  supreme  court 
of  New-Jersey,  againt  Thomas  L.  Woodruff,  for  five  thousand 
nine  hundred  dollars,  and  costs  :  and  that  on  the  18th  of  May, 
1832,  Zachariah  Rossell,  trustee  of  Arm  E.  Woodruff,  also  ob- 
tained a  judgment  against  Thomas  L.  Woodruff,  for  fourteen 
thousand  three  hundred  and  thirty-seven  dollars  and  twenty-one 
cents,  and  costs ;  both  of  which  judgments  arc  liens  upon  the 
mortgaged  premises.  The  bill  sets  forth  no  other  incumbranccs: 
it  alleges  that  the  said  bond  and  notes  remain  unsatisfied,  and 
prays  a  decree  in  the  usual  form. 

.  The  answer  of  Ann  E.  Woodruff,  and  Zachariah  Rossell,  her 
trustee,  filed  on  the  9th  of  March,  1833,  admits  tho  material 
allegations  contained  in  the  bill,  and  by  way  of  defence,  states, 
that  Ann  E.  Woodruff  was  the  only  child  of  Israel  Carle,  who 
being  seized  and  possessed  of  a  large  real  and  personal  estate,  bj 
Ins  last  will  and  testament,  bearing  date  on  the  10th  day  of 


120  CASES  DT  CHANCERY, 

Trenton  Banking  Co.  r.  Woodruff  et  al. 

April,  1822,  among  other  things,  gave  and  devised  all  his  real 
estate  to  the  said  Ann  E.  Woodruff  during  her  life,  and  after  her 
decease,  he  gave  all  his  real  estate  in  the  township  of  Trenton  to 
her  two  sons,  Israel  C.  "Woodruff  and  Aaron  D.  Woodruff,  in. 
eeveralty,  in  fee  simple  ;  and  in  the  event  of  tho  death  of  either 
of  his  said  grandsons,  he  gave  his  share  to  the  said  Ann  E. 
Woodruff,  in  fee.  lie  also  devised  and  bequeathed  all  the  resi- 
due of  his  estate,  real  and  personal,  to  the  said  Ann  E.  Wood- 
ruff, her  heirs  and  assigns,  "  but  neither  that  nor  any  other  part 
of  his  estate,  to  be  subject  to  the  debts  or  failure  of  her  tJien  or 
any  future  husband ; ''  and  of  his  said  will  the  testator  appointed 
his  wife,  Lydia  Carle,  and  his  son-in-law,  Thomas  L.  Wood- 
ruff, executors ;  who  duly  proved  the  same,  and  took  upon  them- 
selves the  execution  thereof. 

The  answer  further  states,  that  the  said  Thomas  L.  Wood- 
ruff, in  order  to  enable  him  to  pay  for  the  mortgaged  premises  in 
the  complainant's  bill  mentioned,  borrowed  of  the  said  Israel 
Carle,  in  his  life-time,  three-thousand  dollars,  and  to  secure  the 
payment  thereof,  executed  to^the  said  Israel  Carle  his  bond, 
bearing  date  on  the  2d  day  of  March,  1821,  in  the  penal  sum 
of  six  thousand  dollars,  conditioned  for  the  payment  of  the  sum 
of  three  thousand  dollars,  in  one  year,  with  interest ;  and  that, 
as  a  furcher  security  for  the  payment  of  the  said  debt,  the  said 
Thomas  L.  Woodruff,  and  Ann  his  wife,  executed  to  the  Baid 
Israel  Carle  a  mortgage  upon  the  premises  described  in  the  bill 
of  complaint,  bearing  even  date  with  the  said  bond.  That  tho 
said  mortgage  was  duly  acknowledged,  on  the  same  day,  before 
Klias  D.  Woodruff,  one  of  the  masters  of  the  court  of  chancery, 
which  said  Elias  D.  Woodruff  is  the  mortgagee  in  the  second 
mortgage  in  the  complainants'  bill  set  forth,  and  was  also  a  sub- 
scribing witness  to  tho  bond  and  mortgage  given  to  Israel  Carle ; 
and  that  the  said  mortgage,  on  the  15th  day  of  May,  1821,  was 
duly  recorded  in  tho  clerk's  office  of  the  county  of  Hunterdon. 
That  after  the  death  of  the  said  Israel  Carle,  his  executors  caus- 
ed an  inventory  and  appraisement  of  his  estate  to  be  made, 
amounting  to  fifteen  thousand  two  hundred  and  eleven  dollars 


OCTOBEE  TERM,  1838.  121 

Trenton  Banking  Co.  v   Woodruff   taL 

and  ninety-six  cents,  in  which  was  included  the  said  bond  and 
mortgage  given  by  Woodruff  and  wife  to  Israel  Carle — the  wholo 
principal  and  interest  of  which  then  remained  due  and  unpaid. 
The  answer  further  states,  that  the  second  mortgage  set  forth 
in  the  complainant's  bill,  was  in  reality  given  to  secure  the  com- 
plainants against  any  loss,  or  liability  to  loss,  by  reason  of  dis- 
counting the  several  notes  therein  mentioned,  and  was  delivered 
by  Elias  D.  Woodruff,  the  mortgagee,  to  the  complainants,  or 
their  lawful  ofiiccr,  on  the  6th  of  November,  1823 ;  and  that  at 
the  same  time,  Pearson  Hunt,  esquire,  the  complainants'  cash- 
ier, gave  a  receipt  signed  by  himself,  in  the  following  woids,  to 
wit :— "  Trenton,  Nov.  5th,  1823.  llcceived  of  Elias  D.  Wood- 
ruff, a  mortgage  executed  by  Thomas  L.  Woodruff  and  wife  to 
Elias  D.  Woodruff,  bearing  date  October  17th,  1823,  and  re- 
corded 28th  day  of  October,  1823,  in  vol.  10  of  mortgages,  pages 
123  and  4,  clerk's  office  of  the  county  of  Ilunterdon.  I  also 
admit  notice  from  Elias  D.  Woodruff  of  prior  incumbrances  to 
Z.  Rossell  and  I.  Carle."  The  answer  then  charges,  that  at  the 
time  of  the  execution  of  the  second  mortgage  mentioned  in  the 
complainants'  bill,  given  by  Thomas  L.  Woodruff  and  Ann-  his 
wife  to  the  said  Elias  D.  Woodruff,  and  at  the  time  that  the  said 
mortgage  was  delivered  by  Elias  D.  Woodruff  to  the  complain- 
ants, the  said  E.  D.  Woodruff  and  the  complainants  well  knew, 
and  each  of  them  had  lawful  notice,  that  the  prior  mortgage 
given  by  Thomas  L.  Woodruff  and  Ann  his  wife  to  the  said 
Israel  Carle,  was  due  and  unpaid,  and  in  full  force ;  and  that  as 
well  because  of  its  being  first  executed  and  recorded,  as  because 
the  said  Elias  D.  Woodruff  and  the  complainants  had  duo  and 
lawful  notice  thereof,  the  said  mortgage  became  and  was  enti- 
tled to  priority  over  the  second  mortgage  mentioned  in  the  com- 
plainants' bill.  That  the  whole  amount  of  principal  and  interest 
of  the  said  bond  of  three  thousand  dollars,  was  still  due  and  ow- 
ing to  the  estate  of  the  said  Israel  Carle,  and  in  equity  belongs 
to  the  said  Ann  E.  Woodruff,  free  from  the  debts  or  failure  of 
her  husband.  That  the  said  mortgage  is  entitled  to  priority  over 
the  second  mortgage  mentioned  in  the  complainants'  bill ;  and 


122  CASES  IN  CHANCERY, 

Trenton  Banking  Co.  v.  Woodruff  et  al. 

that,  if  the  same  has  been  cancelled  or  discharged,  it  has  been 
done  without  payment  or  satisfaction,  and  unlawfully  and  ine- 
quitably, and  that  the  said  cancellation  is  inoperative  and  void. 

The  answer  further  states,  that  the  said  Thomas  L.  Woodruff 
was  the  president  of  the  Trenton  Banking  Company,  and  being 
such  president,  without  receiving  any  payment  or  satisfaction  of 
the  said  bond  and  mortgage,  so  as  aforesaid  given  by  him  to  the 
said  Israel  Carle,  and  being  the  acting  executor  of  the  said  Is- 
rael Carle,  and  a  debtor  to  the  estate,  and  while  the  said  bond 
and  mortgage  were  due  and  subsisting,  without  the  knowledge  or 
approbation  of  the  said  Ann  E.  "Woodruff,  endorsed  a  receipt  up- 
on the  said  mortgage,  acknowledging  the  payment  of  the  money 
due  theron,  and  cancelled  the  same ;  which  cancellation  was 
fraudulent  as  regards  the  rights  of  the  said  Ann  E.  "Wood- 
ruff. 

That  the  said  Thomas  L.  Woodruff  got  into  his  possession  all 
the  assets  belonging  to  the  estate  of  the  said  Israel  Carle  deceas- 
ed, so  as  aforesaid  bequeathed  to  the  said  Ann  E.  Woodruff  free 
from  his  debts  and  liabilities,  amounting,  on  the  1st  of  Septem- 
ber, 1827,  after  the  payment  of  all  debts  and  funeral  and  testa- 
mentary expenses,  to  fifteen  thousand  four  hundred  and  seventy- 
four  dollars  and  twenty-five  cents ;  and  being  otherwise  unable 
to  secure  the  same  to  the  said  Ann  E.  Woodruff,  did,  together 
with  his  wife,  (the  said  Ann  E.  Woodruff,)  by  deed  dated  the 
first  day  of  February,  1832,  convey  unto  the  said  Zachariah 
Rosscll,  whatever  was  given,  devised  or  bequeathed  to  the  said 
Ann  E.  Woodruff,  by  the  will  of  her  father,  the  said  Israel  Carle, 
deceased,  whether  in  possession,  remainder  or  expectancy ;  in 
trust,  nevertheless,  for  the  sole  and  proper  use  and  benefit  of  tho 
said  Ann  E.  Woodruff,  during  her  natural  life,  so  that  the  same 
should  not  J)C  in  any  wiso  subject  to,  or  liable  for,  the  debts,  fail- 
ures, contracts  or  liabilities  of  her  present  or  any  future  husband, 
and  upon  divers  other  trusts  in  flio  said  daad  contained  ;  which 
said  deed  was  duly  acknowledged,  and  on  the  14th  day  of  Feb- 
ruary, 1832,  was  recorded  in  tho  clerk's  office  of  the  county  of 
Tlunterdon. 


OCTOBER  TEEM,  1838.  123 

Trenton  Banking  Go.  v.  Woodruff  et  al. 

Tho  answer  further  insists  upon  the  priority  of  the  mortgage 
given  by  Thomas  L.  "Woodruff  to  Israel  Carle,  over  the  second 
mortgage  mentioned  in  the  complainant's  bill,  and  assents  to  a 
sale  of  the  mortgaged  premises  for  the  purpose  of  paying  the  in- 
cumbrances  in  the  order  specified. 

The  complainants  filed  their  replication,  putting  the  cause  at 
issue ;  and  the  cause  came  on  for  hearing  at  July  term,  1838, 
upon  the  bill,  answer,  replication  and  proofs. 

Ann  E.  Woodruff,  and  Zachariah  Rossell,  her  trustee  and  next 
friend,  on  the  21st  of  April,  1834,  filed  a  cross-bill  against  the 
complainants  in  the  original  cause,  praying,  among  other  things^ 
an  injunction  to  restrain  them  from  proceeding  at  law  to  recover 
possession  of  the  mortgaged  premises.  Under  this  cross-bill  an 
injunction  was  issued,  and  various  proceedings  had,  not  material 
to  the  points  involved  in  the  opinion  of  the  chancellor. 

Wilson  and  Southard,  for  complainants. 
Wall  and  Williamson,  for  defendants. 

TUB  CIIANCELLOE.  Thomas  L.  "Woodruff,  being  the  owner 
in  fee  of  a  moiety  of  a  house  and  lot  of  land  in  the  city  of  Tren- 
ton, exectaed,  in  conjunction  with  his  wife,  on  that  property 
three  mortgages.  The  first  bears  date  the  2d  of  March,  1821, 
and  is  made  to  Zachariah  Rossellj  to  secure  the  payment  to  him 
of  a  bond  of  the  same  date,  for  one  thousand  seven  hundred 
dollars.  This  mortgage  is  recorded  on  the  same  day  it  bears 
date.  The  second  mortgage  bears  the  same  date  with  the  first, 
and  is  made  to  Israel  Carle,  to  secure  to  him  the  payment  of 
.  three  thousand  dollars.  This  mortgage  is  recorded  on  the  15th 
,  day  of  May,  1821.  The  third  mortgage  bears  date  on  the  17th 
October,  1823,  and  is  made  to  Elias  D.  "Woodruff,  to  secure  to 
him  the  payment  of  any  notes  which  he  then  had  or  might 
thereafter  endorse  for  his  brother  Thomas,  and  wliich  should  bo 
discounted  at  any  bank  in  the  stato  of  New-Jersey.  Theso 
mortgages  were  all  given  in  good  faith,  and  no  objection  is  raised 


CASES  IN  CHANCERY, 


Trenton  Banking  Co.  v.  Woodruff  et  al. 


against  them  at  their  inception.  Nor  is  any  question  made  as  to 
the  priority  of  the  first  named  mortgage  to  Zachariah  Kossell. 
That  mortgage  was  first  recorded,  and  the  answer  admits  its 
priority.  The  first  and  third  mortgages  have  been  assigned  to 
the  complainants,  who  file  the  bill  in  this  case  to  foreclose  the 
equity  of  redemption  in  the  mortgaged  premises,  insisting  that 
all  the  principal,  and  large  arrears  of  interest,  are  due  on  the 
first  mortgage,  and  that  there  is  due  on  the  second  mortgage  the 
amount  of  two  promissory  notes  for  large  sums,  endorsed  by  Elias 
D.  "Woodruff,  and  fairly  embraced  within  the  terms  stated  in  the 
condition  of  the  same.  The  bill  does  not  mention  the  existence 
of  the  second  mortgage,  but  prays  a  foreclosure  and  sale  of  the 
premises  to  satisfy  the  two  mortgages  belonging  to  the  complain- 
ants as  the  only  Kens  on  the  property. 

The  counsel  of  the  defendants,  on  the  argument,  raised  an 
objection  to  the  right  of  the  complainants,  under  the  terms  of 
their  charter,  to-cnforce  the  payment  of  the  first  mortgage.  This 
objection  arises  from  the  language  of  the  ninth  rule  in  the  thir- 
teenth section  of  the  act  incorporating  "  The  Trenton  Banking 
Company,"  which  declares  that  "  the  corporation  shall  not,  di- 
rectly or  indirectly,  deal  or  trade  in  any  thing  except  bills  of  ex- 
change, promissory  notes,  gold  or  silver  bullion,  or  in  the  sale  of 
goods  which  shall  be  the  produce  of  its  lands."  The  object  of 
this  provision  was,  no  doubt,  to  restrain  the  company  within  tho 
legitimate  sphere  of  banking,  and  to  prevent  their  branching  out 
into  any  other  kind  of  business.  That  this  company  might  se- 
cure a  debt  by  accepting  the  transfer  of  tliis  kind  of  security, 
was  not,  and  cannot  be  denied.  There  was,  then,  authority  for  this 
bank  in  this  way,  at  least,  to  become  lawfully  the  assignees  of  this 
mortgage.  No  allegation  is  made  by  the  answer,  nor  is  it  at- 
tempted to  be  proved,  that  the  bank  came  iuto  possession  of  these 
securities  other  than  within  the  scope  of  their  chartered  powers. 
Under  such  circumstances,  the  only  legal  or  just  inference  which 
can  bo  drawn,  is,  that  the  parties  came  lawfully  to  be  the  owners 
of  this  bond  and  mortgage. 

The  main  question,  however,  in  the  cause,  arises  upon  the  an- 


OCTOBER  TEEM,  1838.  .      125 

Trentou  Banking  Co.  v.  Woodruff  et  al. 

ewer  of  Mrs.  "Woodruff,  the  wife  of  the  mortgagor,  and  Zacha- 
riali  Hossell,  her  trustee ;  and  it  discloses  a  mortifying  and  pain- 
ful state  of  facts.  It  seems  that  Israel  Carle,  the  owner  of  the 
second  mortgage,  was  the  father-in-law  of  Thomas  L.  Woodruff, 
and  died  in  a  little  more  than  a  year  after  receiving  this  mortgage, 
and  by  his  will  gave  the  residue  of  his  estate  (which  embraced 
this  bond  and  mortgage)  to  his  daughter,  free  and  clear  of  her 
husband,  or  his  debts,  and  appointed  his  widow,  and  the  said 
Thomas  L.  "Woodruff,  his  eon-in-law,  his  executors.  The  alle- 
gation is  that  "Woodruff,  availing  himself  of  his  situation  as  ex- 
ecutor of  his  father-in-law,  upon  coming  into  the  possession  of  his 
own  bond  and  mortgage,  without  a  dollar  being  paid,  endorsed  on 
the  bond  that  it  was  paid,  and  cancelled  the  mortgage  of  record ; 
thereby  defrauding  his  own  family  of  the  provision  which  a  fa- 
ther's kindness  had  made  for  his  daughter.  That  such  endorse- 
ment was  made  on  the  bond,  and  that  the  mortgage  was  cancel- 
led on  the  very  day  on  which  the  will  was  proved,  is  clear  from 
the  proofs  in  the  cause,  but  under  what  circumstances  such  can- 
cellation took  place  will  be  further  considered  hereafter. 

I  shall  for  the  present  consider  the  case  upon  the  supposition 
that  the  cancellation  was  made  without  any  payment,  without 
stopping  to  enquire  how  that  fact  stands  upon  the  proofs  in  the 
cause.  As  between  the  parties  themselves,  that  is,  Thomas  L. 
"Woodruff  and  the  trustee  of  his  wife,  the  power  of  tliis  court,  as 
well  as  its  duty,  to  interpose  in  behalf  of  a  wife,  or  any  other 
cestui  que  trust,  and  arrest  the  evil  arising  from  so  gross  a  fraud, 
cannot  be  questioned.  The  mere  fact  of  a  party  destroying  a 
bond  or  other  instrument  without  authority,  can  never  be  set  up 
against  the  right  of  him  who  IKIS  the  bcncn'cial  interest.  It  may 
create  embarrassment  in  making  the  proof,  but  if  the  facts  arc 
established,  ho  will  be  reinstated  in  his  rights.  It  ir  one  of  the 
plainest  and  most  common  grounds  of  equity  jurisdiction  to  guard 
innocent  parties  from  frauds  and  impositions,  and  particularly 
married  women  and  infants.  This  will  be  done,  even  against 
the  husband.  It  has  been  settled  in  this  court,  that  the  cancella- 
tion of  a  mortgage  on  the  record  is  only  priina  facie  evidence  of 


126  CASES  IK  OHANCEEY, 

Trenton  Banking  Co.  v.  Woodruff  et  al. 

its  discharge,  and  leaves  it  open  to  the  party  making  such  alle- 
gation, to  prove  that  it  was  made  by  accident,  mistake  or  fraud. 
On  such  proof  being  made,  the  mortgage  will  be  established, 
even  against  subsequent  mortgagees  without  notice.  Miller  and 
Stiger  v.  Wack  and  others,  1  Saxton,  214  ;  Lilly  v.  Quick, 
ante,  page  97. 

That  part  of  the  will  of  Mr.  Carle  which  embraces  the  bond 
and  mortgage  in  question,  is  in  the  following  words : — "  I  give, 
devise  and  bequeath  unto  my  said  daughter,  Ann  E.  "Woodruff, 
her  heirs  and  assigns,  all  and  singular  the  residue  of  my  estate, 
real  and  personal,  but  neither  this  nor  any  other  part  of  my  es- 
tate to  be  in  any  wise  subject  to  the  debts  or  failure  of  her  present 
or  any  future  husband."  It  was  not  denied,  that  this  clause  cre- 
ated a  clear  trust  in  favor  of  Mrs.  Woodruff.  There  was  at  one 
time  great  doubt  expressed,  whether  a  trust,  especially  of  personal 
property,  could  be  created,  by  a  direct  bequest  to  the  use  of  a  wife, 
so  as  to  prevent  the  husband's  enjoyment  of  the  estate,  without 
the  intervention  of  trustees ;  but  the  rule  is  now  well  settled,  that 
equity  will  sustain  such  trust,  either  of  real  or  personal  estate, 
and  declare  the  husband  to  be  a  mere  trustee  for  the  use  of  the 
wife.  Clancey  on  Rights  of  Married  Women,  36-8  Hartley 
v.  Harney,  1  Peere  Williams,  125 ;  2  Peere  Williams,  79,816. 
"What  right,  then,  had  the  husband  to  destroy  and  cancel  these 
instruments  without  their  payment  ?  He  stood  in  the  relation  of 
a  trustee  to  his  wife.  Even  in  his  character  of  executor,  he  had 
no"such  right :  it  was  a  gross  fraud  upon  the  estate  committed 
to  his  charge.  A  trustee  cannot  even  transfer  a  trust  estate  for 
his  own  use.  2  Paige,  202.  Nor  will  he  be  allowed  to  make 
any  "profit,  gain  or  advantage"  to  himself  out  of  a  trust  estate 
in  his  hands.  Schieffln  v.  Stuart,  1  John  Ch.  Hep.  625.  In- 
deed, the  books  are  full  of  cases  showing  the  arm  of  a  court  of 
equity  extended  as  a  protection  and  shield  against  the  fraud  and 
imposition  of  trustees.  It  was  asked  with  force,  on  the  hearing, 
how  this  trustrcc  could  defend  himself  on  a  bill  filed  against 
him,  alleging  these  frauds?  He  could  not,  upon  any  prin« 
ciple. 


OCTOBER  TERM,  1838.  127 

Trenton  Bankin  T  Co.  v.  Woodruff  ct  al. 

As  between  the  parties  themselves,  I  can  hardly  suppose  any 
question  would  etfrer  have  been  raised.  The  case  is  too  palpable, 
and  forces  the  same  conclusion  upon  the  common  sense  of  every 
man.  But  the  establishment  of  this  mortgage  must  materially 
affect  the  complainants,  who  claim  to  be  mortgagees  without  no- 
tice. If  this  be  so ;  if  they  have  really  taken  their  last  mortgage 
ignorant  of  the  one  now  disputed,  they  have  a  strong  claim  for 
the  consideration  of  the  court ;  for  as  at  present  advised,  I  should 
not  feel  willing  to  interpose  in  a  case  where  the  testator  had,  by 
the  very  act  of  constituting  his  debtor  an  executor,  placed  it  in 
his  power  to  practice  a  fraud  on  innocent  parties.  The  question 
then  of  notice  to  the  complainants,  becomes  most  important. 
That  Elias  D.  "Woodruff,  the  person  to  whom  the  complainants 
last  mortgage  was  made,  had  notice  of  the  existence  of  the  dis- 
puted one,  is  manifest.  lie  is  one  of  the  subscribing  witnesses  to 
its  execution,  and  the  person  before  whom  the  same  was  acknow- 
ledged. The  disputed  mortgage  bears  date  on  the  2d  of  llarch, 
1821 :  the  cancellation  took  place  on  the  22d  of  July,  1822 ;  and 
yet  we  find,  on  the  5th  of  November,  1823,  more  than  fifteen 
months  after  such  cancellation,  the  then  cashier  of  tho  bank 
gave  a  receipt  of  the  following  tenor : — "  Trenton,  Xov.  5th, 
1823.  Received  of  Elias  D.  Woodruff,  a  mortgage  executed  by 
Thomas  L.  Woodruff  and  wife  to  Elias  D.  Woodruff,  bearing 
date  Oct.  17th,  1S23,  and  recorded  28th  day  of  October,  1823, 
in  vol.  10  of  mortgages,  pages  123  and  4,  clerk's  office,  county 
of  Ilunterdon.  I  also  admit  notice  from  Elias  D.  Woodruff  of 
prior  incumbrances  to  Z.  Rossell  and  I  Carle.  (Signed)  Pear- 
eon  Ilunt,  cashier."  This  paper,  if  genuine,  must  have  a  strong 
bearing  on  this  cause.  It  declares,  explicitly  and  plainly,  that  at 
the  time  of  receiving  their  last  mortgage,  the  cashier  was  in- 
formed of  the  existence  of  this  disputed  mortgage,  and  that  it 
was  then  a  prior  incumbrance.  This  was  long  after  the  cancel- 
lation. The  information  is  also  stated  to  have  been  received  from 
Elias  D.  Woodruff,  the  very  man  from  whom  they  received  this 
mortgage,  and  who,  from  the  whole  evidence,  appears  to  have 
known  of  the  existence  of  the  one  now  disputed,  as  he  witness- 


128  CASES  IK  CHANCEKY, 

Trenton  Banking  Co.  v.  Woodruff  et  al. 

ed  its  execution,  and  acknowledged  it  as  one  of  the  masters  of 
this  court,  and  who,  in  his  certificate  of  acknowledgment,  de- 
clares that  he  made  thg  contents  of  the  mortgage  known  to  tho 
parties.  The  signature  of  the  cashier  to  the  paper  is  admitted, 
but  the  body  is  not  in  his  hand-writing.  The  latter  clause  of  the 
receipt,  admitting  notice  of  the  two  prior  incumbrances,  is  char- 
ged to  have  been  interlined.  There  is  no  evidence  of  such  inter- 
lineation, except  what  is  drawn  from  the  inspection  of  the  paper 
itself.  I  have  examined  it  carefully,  and  feel  bound  to  say,  that 
I  do  not  see  ground  for  such  belief.  At  all  events,  there  is  nothing 
in  the  appearance  of  the  paper  itself  that  would  justify  me  in 
declaring  it  a  forgery.  I  receive  it,  therefore,  as  a  genuine  pa- 
per, and  take  it  as  it  reads.  A  court  must  be  well  satisfied  of  the 
facts  of  forgery,  before  it  can  undertake  to  predicate  upon  it  any 
important  result.  It  is  also  insisted,  that  if  genuine,  still  this 
paper  is  no  notice  to  the  bank.  A  notice  to  a  cashier  is  notice  to 
a  bank.  This  must  be  the  rule,  Otherwise  it  will  be  impossible 
to  get  on  in  the  ordinary  course  of  business.  There  is  no  officer 
so  directly  intrusted  with  its  concerns,  especially  the  details  of 
business,  as  the  cashier.  He  is  the  authorized  agent  of  the  com- 
pany for  all  the  purposes  within  the  sphere  of  their  business.  If 
the  individual  who  signed  that  receipt  as  cashier,  was  now  alive,  • 
he  might  possibly  place  the  subject  in  a  different  light ;  but  in  tho 
absence  of  any  explanation  beyond  what  the  paper  itself  affords, 
I  can  only  take  it  as  its  very  words  import,  that  lie  received 
the  last  mortgage  with  a  knowledge  of  the  two  prior  incum- 
brances. 

The  receipt  is  dated  the  5th  of  [November,  1823,  and  yet  it 
seems  the  assignment  of  this  last  mortgage  was  actually  not 
nade  to  the  bank  until  after  tho  death  of  Elias  D.  Woodruff, 
whose  executor  made  the  assignment  on  the  25th  of  August, 
1827.  Some  speculation  has  grown  out  of  this  apparent  incon- 
sistency. I  do  not  see  that  this  can  in  any  view  vary  the  case. 
In  any  event,  the  receipt  shows  a  notice  at  its  date.  Cut  the  dif- 
ficulty, it  appears  to  me,  may  be  easily  solved.  Tho  mortgage 
ultimately  to  stand  as  a  security  to  the  bank.  Elias  I). 


OCTOBER  TEKH,  1838.  129 

Trenton  Banking  Co.  v.  Woodruff  et  aL 

Woodruff  was  the  endorser  to  the  bank,  and  reposing,  as  well 
lie  might,  confidence  in  the  cashier,  it  is  not  unreasonable  to 
suppose  he  placed  the  papers  in  his  hands  to  wait  events  as  they 
might  arise,  respecting  the  notes  he  had  so  endorsed.  After  thv 
death  of  Mr.  "Woodruff,  it  occurred  properly  enough  to  the  cash 
icr  that  these  papers  should  be  assigned,  and  the  executor  accord 
ingly  assigned  them.  The  only  evidence  on  this  part  of  the  case 
as  far  tis  I  can  perceive,  is  that  of  Mr.  Titus,  the  present  cashier 
and  that,  as  he  declares  himself,  is  not  very  distinct.  lie  ro 
members  that  about  the  time,  or  shortly  after  the  mortgage  was 
given  by  Thomas  L.  Woodruff  to  Eliza  D.  Woodruff,  he  saw  the 
disputed  mortgage.  Thomas  L.  Woodruff  brought  it  into  the 
bank,  and  handed  it  to  Mr.  Hunt,  the  cashier.  There  had  been 
some  discussion  whether  it  had  been  discharged :  it  was  wrote 
upon  it  that  it  had  been  discharged.  He  states  that  the  mort- 
gage was  brought  to  satisfy  Mr.  Hunt  that  it  had  been  dischar- 
ged, as  Ue  understood.  In  his  cross-examination,  he  says,  he 
did  not  hear  the  purport  of  the  conversation  between  Mr.  Hunt 
and  Mr.  Woodruff  at  the  time  ho  saw  the  Carle  mortgage  hand- 
ed him.  This  witness  seems  rather  to  infer  that  Yv^oodruff 
brought  the  mortgage  there  to  satisfy  Mr.  Hunt  it  was  cancelled, 
than  to  give  what  the  conversation  was,  for  he  says  he  did  not 
know  the  purport  of  their  conversation.  This  conversation  must 
have  taken  place  about  the  time  of  giving  the  receipt,  for  he 
says  it  was  about  the  time  or  shortly  after  the  mortgage  was 
given  by  Thomas  L.  Woodruff  to  Elias  D.  Woodruff.  That 
mortgage  was  given  on  the  17th  of  October,  1823,  and  the  re- 
ceipt is  dated  the  5th  of  November  thereafter.  If  Mr.  Hunt  had,, 
as  it  seems  he  had,  received  the  mortgage  subject  to  the  other- 
two,  and  there  was  a  discussion  about  one  of  them  being  can-, 
celled,  and  that  too  after  Mr.  Carle's  death,  by  the  execu'tor,  who. 
was  also  the  maker  of  the  instrument,  there  was,  surely,  enough 
to  have  put  the  bank  on  enquiry.  If  they  did  not  mean  to  hold 
this  mortgage  subject  to  the  one  of  Carle,  he  should,  and  I  think 
would,  have  taken  up  and  varied  the  receipt  which  he  had  given. 
The  recollection  of  what  transpired,  is  not  sufficiently  distinct  in 


ICO  CASES  IK  CHANCEKY, 

T  enton  Banking  Co.  v.  Woodruff  et  c.l. 

the  witness,  to  overcome  the  plain  written  declaration  of  the 
cashier,  made  at  or  about  the  same  time,  that  he  took  the  mort- 
gage subject  to  the  other  two. 

.  It  is  very  manifest,  the  bank  did  not  at  this  time  rest  its  se- 
curity for  the  loans  made  to  Thomas  L.  "Woodruff,  on  this  mort- 
gage. They  had  the  endorsement  of  Elias  D.  Woodruff,  and  he 
took  the  mortgage  for  his  protection.  Afterwards,  upon  his  death, 
they  obtained  this  assignment,  as  the  only  means  left  by  which 
they  could  get  their  money.  I  consider,  therefore,  that  the  bank 
had  full  notice  of  the  existence  of  this  mortgage,  and  recognized 
it  as  a  valid  prior  incumbrance  to  their  own,  long  after  the  time 
of  its  alleged  fraudulent  cancellation ;  and  that  they  cannot,  un- 
der such  circumstances,  stand  in  any  other  better  or  situation 
than  the  party  himself  could,  in  resisting  the  present  effort  of  the 
trustee  to  establish  this  lien  on  the  property.  That  trustee  is 
now  Mr.  Ilossell,  who  has  by  the  act  of  the  parties  been  intrust- 
ed with  the  whole  estate  of  Mrs.  Woodruff  derived  from  her  fa- 
ther. It  will  not  do  for  us  to  be  led  away  by  our  strong  disap- 
probation of  the  conduct  of  the  husband,  to  disregard  the  rights 
of  his  family.  Nor  should  we  allow  ourselves  to  be  influenced 
by  the  possibility  ^  that,  through  the  indulgence  of  his  wife,  he 
may  again  reap  the  actual  enjoyment  of  this  money.  If  «o,  it 
will  be  contrary  to  the  express  trust.  It  will  be  as  well  the  duty 
as  the  safety  of  the  trustee,  to  see  that  the  funds  are  applied  ac- 
cording to  the  terms  of  the  trust. 

Thus  far  my  decision  proceeds  upon  the  presumption  that 
Thomas  L.  "Woodruff  never  paid  off  this  bond  and  mortgage. 
To  ascertain  this  fact  by  any  evidence  on  which  to  rest,  has  been 
my  great  difficulty  in  the  cause.  The  answer  sets  up  the  mort- 
gage. This  is  the  first  we  hear  of  it.  There  can  be  no  doubt 
that  the  allegations  in  the  answer  setting  up  new  matter,  and  that 
affimatively,  must  be  sustained  by  proof.  1  /Saxton,  230; 
G  Johns.  Rep.  559.  560.  This  is  the  settled  rule.  "Wo  then 
look  into  the  depositions,  and  find  that  of  Thomas  L.  Woodruff 
himfjclf,  one  of  the  defendants,  much  relied  on.  lie  was  exam- 
ined by  an  order  of  tho  court,  subject  to  all  legal  exceptions.  IIo 


OCTOBER  TERM,  1838.  131 

Trenton  Banking  Co.  v.  \Vojdruffet  uL 

is  tho  husband  of  Ann  E.  Woodruff,  in  whose  behalf  ho  is  calk 
ed.  lie  is  clearly  an  inadmissible  witness.  Is  a  civil  action  a 
husband  cannot  be  a  witness  either  for  or  against  his  wife.  He 
cannot  be  a  witness  for  his  wife,  from  a  strong  bias  in  her  favor, 
and  from  their  interests  being  the  same.  He  cannot  be  a  witness 
against  his  wife,  as  being  opposed  to  the  legal  policy  of  marriage. 
Nor  can  the  husband  be  a  witness  for  his  wife  in  a  question 
touching  her  separate  estate.  Tke  cases  cited  on  the  argument 
fully  sustain  this  objection.  Davis  v.  Dinmoody,  4  Term  Rep. 
673 ;  Wyndham  v.  Chetwood,  1  Burrow,  424 ;  Stuart  v.  Stv<~ 
art,  7  Jo/ins.  Ch.  Rep.  229.  The  deposition  of  this  witness 
must  be  rejected,  and  for  all  purposes. 

It  was  urged  that  the  complainants  were  bound  to  show  this 
mortgage  paid  off.     This  is  not  my  view  of  the  case,  nor  is  it 
the  view  taken  in  the  case  in  1  Saxton,  before  cited.     The  re- 
cords show  the  mortgage  cancelled,  and  the  papers,  when  pro- 
duced, show  on  the  bond  and  mortgage  an  endorsement  by  the 
executor  that  they  are  paid,  and  the  mortgage  has  the  seals  taken 
off.     Under  such  circumstances,  it  belongs  to  the  defendants  to 
show  that  the  allegations  in  their  answer  are  tme,  to  wit,  that 
Thomas  L.  Woodruff  never  paid  the  money  on  this  mortgage, 
but  against  right  made  the  endorsement  on  and  cancelled  the  pa- 
pers of  record.     It  is  further  said,  that  the  mortgage  could  not 
have  been  paid,  as  Woodruff  could  not  be  both  payer  and  re- 
ceiver.   Suppose  it  proved  that  on  the  22d  of  July,  1822,  the 
day  the  payment  is  endorsed,  that  Thomas  L.  Woodruff,  out  of 
his  own  funds,  discharged  a  debt  against  the  estate  of  Israel 
Carle  for  an  amount  equal  to  this  bond  and  mortgage,  and  hav- 
ing done  so,  made  this  endorsement  and  cancellation.     He  then 
\vonld  be  both  payer  and  receiver,  and  yet  the  transaction  wouH 
be  honest,  and  the  cancellation  right     I  have  looked  carefully 
through  the  complainant's  answer  to  the  cross-bill  to  see  if  any 
admission  was  there  made  on  this  part  of  the  case,  but  I  find 
none.     How,  then,  do  the  defendants  prove  the  most  essential 
part  of  the  answer,  that  Thomas  L.  Woodruff  never  paid  thif 


132    .  CASES  IN  CHANCERY, 

Trenton  Banking  Co.  v.  Woodruff  et  al. 

•  * 

bond  and  mortgage,  but  fraudulently  cancelled  them  ?  Resting 
here,  there  would  be  a  total  failure  in  the  proof. 

There  are,  however,  some  very  strong  reasons  for  believing 
that  he  never  did  pay  the  money.  In  the  first  place,  the  pay- 
ment purports  to  have  been  made  on  the  very  day  the  will  was 
proved,  and  before  it  is  usual  with  executors  to  perform  any  im- 
portant business  of  the  estate.  It  is  hardly  to  be  supposed  that 
liis  first  act,  at  so  early  an  hour,  would  be  to  pay  oil  so  large  a 
debt.  In  the  second  place,  there  is  no  trace  of  any  payment  be- 
ing made  at  that  time  on  account  of  the  Carle  estate.  And  in 
the  third  place,  the  receipt  of  Mr.  Hunt,  cashier,  recognizes  the 
mortgage  as  a  valid  and  prior  incumbrance,  more  than  a  year 
alftcr  the  alleged  payment. 

There  are  facts  both  ways  on  this  question,  open  to  construc- 
tion and  inference,  but  of  themselves  not  sufficiently  conclusive 
iii  my  view  to  found  a  decree,  without  the  intervention  of  a  jury. 
Tho  matter  to  be  established  lays  at  the  foundation  of  the  whole 
cause,  and  upon  which  the  conscience  of  the  court  should  be  well 
informed.  There  is,  in  my  view,  but  one  safe  and  correct  course, 
and  that  is  to  direct  an  issue  to  ascertain  the  single  fact,  whether 
Thomas  L.  Woodruff  ever  paid,  or  not,  this  bond  and  mortgage 
to  the  estate  of  Israel  Carle.  My  private  views  on  the  subject 
not  growing  out  of  the  proofs  of  the  case,  cannot  be  allowed  to 
operate :  they  may  be  founded  in  great  error. 

The  power  of  the  court  to  direct  this  issue,  in  a  case  like  the 
present,  is  recognized  in  all  the  books,  and  i&  expressly  author- 
ized by  oar  statute.  The  power  rests  in  discretion,  and  I  agree 
should  be  sparingly  exercised.  Nothing  but  imperious  necessity 
would  induce  me  to  take  this  course.  In  a  case  very  like 
the  present,  on  the  first  hearing,  in  1  Saxton,  206,  cliancellor 
Williamson  ordered  an  issue.  In  New-York  it  has  often  been 
done.  1  Johns.  Cases,  436  ;  6  Johns.  Ch.  I2ep.  256. 

Tho  cross-bill  and  answer  disclose  no  new  fact,  and  need  not 
receive  any  separate  consideration.  The  object  of  that  bill  was 
to  injoin  the  complainants  from  proceeding  in  an  ejectment  to 
obtain  possession  of  the  mortgaged  premises.  ., 


OCTOBER  TERM,  1838.  133 

Trenton  Banking  Co.  v.  Woodruff  et  al. 

It  appeared  to  me  proper,  as  the  case  was  f  ullj  argued,  to  ex- 
amine it  on  its  merits.  If  it  shall  result  in  a  verdict  declaring 
the  bond  and  mortgage  to  have  been  paid  by  Thomas  L.  "Wood- 
ruff, the  claim  of  the  defendants  must  end  there ;  if,  that  it  was 
not  paid,  then  the  mortgage  must  be  established  and  be  paid  in 
the  order  of  its  original  priority. 

Let  an  issue  be  made  up  upon  the  single  question,  whether 
Thomas  L.  "Woodruff  ever  paid,  in  whole  or  in  part,  the  bond 
and  mortgage  of  Israel  Carle,  to  be  tried  in  the  supreme  court, 
on  the  part  of  the  defendants,  with  leave  to  use  on  that  trial  the 
pleadings  and  depositions  in  the  case,  subject  to  all  legal  objec- 
tions to  the  competency  of  the  witnesses,  or  the  legality  of  their, 
evidence — unless  the  complainants  shall  on  their  part  waive  the 
necessity  of  any  further  proof  on  the  point.  The  question  of  costs 
and  all  other  matters  are  reserved. 
Issue  awarded. 

CITED  in  Dock  v.  Elizabeth  Steam  Mfg.  Co.  5  Vr.  817;  Black  v.  Lamb,  1 
Seat.  113 ;  Bell  v.  Fleming's  Ears.  Id.  494;  Black  v.  Shreve,  2  Beat. 
478  ;  Banta  v.  Vreeland,  2  Me  Car.  107;  Marshman  v.  Conklin,  2  C. 
K  Or.  288 ;  Cramer  v.  Reford,  Id.  384 ;  Harrison's  Ad.,  v.  John- 
*m,  3  C.  K  Or.  434;  Freenoldcrs  of  Middlesex  v.  Thomas,  5  C.  & 
Or.  42 ;  Blauvelt  v.  Ackerman,  Id.  149 ;  Carlisle  v.  Cooper.  6  C.  E. 
Or.  590;  Dudley  v.  Bergen,  8  0.  E.  Gr.  400. 


AAEON  HAZEN  v.  CnAErry  DUELING,  Administrator  of  JOHN 
DUELING,  deceased,  and  others. 

The  condition  of  an  administration  bond,  under  the  statute  of  New-Jersey,  i« 
not  restiictcd  merely  to  the  rendering  of  on  account,  but  is  designed  t  se- 
cure a  faitliful  admin  stration  of  the  estate. 

J-  is  a  part  of  the  condition  of  such  a  bond,  that  the  administrator  shall  faith- 
fully  apply  the  asse  s  to  the  payment  of  the  debts  ;  aud  the  non-payment  of 
judgment  obtained  against  the  administrators  may  be  assignedas  a  breach 
of  the  condition. 

After  the  return  of  nulla  bona  upon  an  execution  against  the  administrators, 
the  administration  bond  is  forfeited,  ar.d  the  surety  has  a  right  to  satisfy  tha 
execution  with  or  without  suit  upon  the  bond. 

Bncb  payment  is  not  voluntary,  and  the  party  making  it  may  recover  it  back 
from  the  party  for  whose  benefit  it  was  made. 

A  surety  in  nn  administration  bond,  having  satisfied  an  execution  against  th« 
estate  of  the  intestate,  becomes  a  creditor  of  the  administrators  iu  their 
own  right,  having  paid  money  for  their  joint  account  His  remedies  n  gainst 
ttu  m  should  be  exhausted,  before  this  court  can  interfere  in  his  behalf  to 
reach  the  assets  of  the  intestate. 


134  CASES  IN  CHANCERY, 

Hazen  v  Darling  et  al. 

Con  relief  be  had  in  this  court  against  the  representatives  of  one  of  two  jo  nt 
debtors,  without  making  the  other  joint  debtor  a  party,  and  showing  by  a 
return  of  nutta  bona  that  the  money  could  not  be  recovered  against  h*r 
at  law? — Qu. 

It  seems,  that  where  the  bill  charges  that  one  of  two  joint  debtors  is  insolvent, 
tho  court,  especially  in  favor  of  a  surety,  will  sustain  ;he  bill  against  the 
representatives  of  the  other. 

Upon  a  decree  for  an  account,  upon  a  bill  filed  by  a  creditor  against  an  admin- 
istrator,  the  account  cannot  bo  taken  for  the  benefit'  of  the  complairian  t 
a'one,  but  must  be  for  the  benefit  of  all  such  credit  rs  as  choose  tocome  in 
before  the  master. 

A  decree  of  this  court  is  a  judgment  from  its  date  in  favor  of  all  the  creditors, 
and  they  are  entitled  to  be  paid  rateably  unless  they  have  some  legal  pri- 
ority. 

THE  pleadings  in  this  case  present  the  following  state  of  facts. 
John  Durling,  of  the  county  of  Sussex,  in  the  year  1811,  died 
intestate ;  and  his  widow,  Charity  Durling,  and  John  Tillman, 
took  out  letters  of  administration  upon  the  estate,  and  gave  a 
bond  for  the  faithful  discharge  of  their  duties  as  such  adminis- 
trators under  the  act,  with  the  complainant  and  Amos  Shiner  as 
sureties.  Jesse  Baldwin,  having  a  claim  against  the  intestate, 
prosecuted  a  suit  in  the  supreme  court  of  this  state  against  the 
administrators,  and  upon  the  several  pleas  of  the  general  issue 
and  the  statute  of  limitations,  obtained  a  judgment  in  the  term 
of  November,  1825,  for  two  hundred  dollars  damages.  On  this 
judgment  execution  was  issued  to  levy  the  amount,  of  the  goods 
and  chattels  of  the  intestate,  in  the  usual  form,  to  the  sheriff  o.i 
the  county  of  Warren  ;  who  returned  the  same  nulla  tiona.  Af- 
ter this  return,  the  plaintiff  in  the  said  judgment  obtained  an 
order  from  the  ordinary  for  prosecuting  the  administration  bond, 
and  actually  commenced  and  was  proceeding  in  said  suit,  when 
the  defendant,  Hazen,  paid  the  amount  due  on  Jesse  Baldwin's 
judgment,  with  the  costs  of  thcsuit  on  the  administration  bond. 
Shiner,  the  co-surety  with  the  complainant,  and  John  Tillman, 
one  of  the  administrators,  are  both  dead.  The  complainant,  hav- 
ing thus  paid  money  on  the  administration  bond,  as  surety  for 
these  administrators,  filed  this  bill  against  Charity  Durling,  in 


OCTOBER  TERM,  1838.  1C5 

ILi/i'ii  v.  Durliug  et  al. 

her  character  of  administrator  of  her  husband,  John  Darling, 
and  also  against  the  administrators  of  John.  Tillman,  the  deceas- 
ed administrator,  praying  to  recover  the  amount  so  paid  by  him, 
iirst,  out  of  the  estate  of  John  Durling,  in  the  hands  of  Charity 
Durliug,  his  surviving  administrator,  if  there  be  any  such  estate, 
and  if  not,  then  from  the  estate  of  John  Tillman,  in  the  hands 
of  his  administrators. 

Charity  Durling  did  not  answer,  but  allowed  a  decree  pro  con- 
fesso,  to  be  taken  against  her.  The  administrators,  of  Tillman 
answered,  and  the  cause  was  submitted  upon  the  pleadings  and 
proofs,  without  argument. 

J.  W.  Miller,  for  complainant. 
1.  II.  Williamson,  for  defendants. 

THE  CHANCELLOR.  The  first  and  most  obvious  question  to 
be  settled  in  this  cause  is,  whether  the  administration  bond  was 
forfeited.  If  not,  then  the  complainant  paid  the  money  volun- 
tarily, and  the  foundation  upon  which  he  has  based  his  suit  is 
gone.  In  the  case  of  the  Archbishop  of  Canterbury  v.  Wills, 
1  Salk.  3 1C,  it  was  held  by  Holt,  chief  justice,  that  the  condi- 
tion of  this  bond  was  answered  by  rendering  an  account,  and 
was  not  intended  to  be  a  security  for  the  payment  of  the  debts : 
that  a  creditor  had  no  right  to  prosecute  this  bond,  and  assign 
for  breach  the  non-payment  of  a  debt  to  him.  •  That  this  should 
over  have  been  held  as  a  compliance  with  the  terms  of  the  bond, 
is  indeed  strange,  when  the  condition  requires  the  administrator 
not  only  to  account,  but  "  well  and  truly  to  administer  "  the  es- 
tate according  to  law.  Chief  justice  Spencer,  i  i  the  case  of  77^? 
People  v.  Dunlap,  Y&'Jolm*.  Rep.  440,  has  placed  this  sub- 
ject, in  my  opinion  on  the  true  ground.  In  that  case  there  was 
a  judgment  and  execution  by  a  creditor  of  the  intestate  against 
the  administrators,  and  a  return,  as  in  tins  case,  of  nulla  lona, 
and  the  very  point,  was  raised  on  the  authority  of  the  eae-c  in 
Salkehl,  that  it  was  no  part  of  the  condition  of  the  lx>wl  that 


13G  CASES  IN  CHANCEKY, 

Hazen  v.  Durling  et  al. 

the  administrator  should  pay  the  debts ;  but  the  judge  declared  it 
was,  and  held  it  to  be  a  good  assignment  of  a  breach  in  the 
bond.  The  chief  justice  also  refers,  in  that  opinion,  to  other  au- 
thorities, settling  the  case  I  think  clearly,  and  upon  the  only 
rational  and  sound,  principles.  After  the  return  of  nulla  l>ona 
on  the  execution  against  the  administrators,  the  bond  was  for- 
feited, and  the  surety  had  a  right  to  pay  it  with  or  without  suit. 
The  administrators  of  Tillman  were  requested  to  pay  it  by  the 
complainant,  but  declined  having  any  thing  to  do  with  it ;  the 
surviving  administrator  did  not  do  it,  and  the  complainant  went 
forward  and  paid  it.  The  payment  cannot  be  considered  as  vol- 
untary, but  compulsory,  and  made  after  a  forfeiture  of  the  bond. 

I  am  not  ignorant  that  the  supreme  court  of  this  state  have 
considered  this  subject,  in  the  case  of  The  Ordinary  v.  Robinson 
and  others,  1  Hoisted,  195,  and  in  the  case  of  The  Ordinary  v. 
Snook  and  others,  5  Hoisted,  65.  Those  cases  were  designed  to 
settle  the  course  of  practice  in  a  suit  on  an  administration  bond. 
They  do  not  deny  the  doctrine  that  a  creditor  may  sue  the  bond, 
but  decide  that  he  cannot  assign  as  a  breach  the  non-payment  of 
his  debt.  The  breach  assigned  must  be,  that  the  administrator  has 
not  made  a  true  and  perfect  inventory,  or  has  not  administered 
the  estate  according  to  law.  Under  this  last  breach,  the  not  paying 
the  debts  of  the  intestate  are  embraced.  These  cases  relate  to  tho 
forms  of  proceeding  in  the  common  law  courts  on  the  adminis- 
tration bonds,  and  are  not  designed  to  vary  in  any  way  the 
general  principles  of  law  relating  to  the  liabilities  of  parties  un- 
der them.  I  see  nothing  in  these  cases  that  looks  like  a  denial 
that  a  creditor  may,  in  proper  form,  obtain  his  remedy  on  tho 
bond,  and  that  it  is  a  security  to  him  as  well  as  to  the  next  of  kin. 

In  tho  case  now  before  me,  the  suit  on  the  bond  is  evidently 
brought  under  the  decision  in  1  Hoisted.  The  breaches  assiern- 

o  •  o 

cd  are,  for  not  filing  an  inventory,  for  not  administering  the  es- 
tate according  to  law,  and  for  not  making  a  just  and  true  ac- 
count of  the  administration.  The  bill  charges  that  sufficient 
assets  came  to  tho  hands  of  the  administrators  of  Durling  to  pay 
all  his  debts.  The  answer  admits  that  ho  loft  a  considerable 


OCTOBER  TERM,  1838.  137 

Ilazeii  v.  Darling  et  nl. 

personal  estate,  but  professes  to  be  ignorant  of  tlie  amount.  The 
proofs  in  the  cause  show  a  balance  unadministered  in  the  hands 
of  the  administrators  of  two  thousand  eight  hundred  and  sixty- 
four  dollars  and  forty-two  cents,  on  the  settlement  of  their  ac- 
counts in  the  orphan's  court.  In  adjudging,  therefore,  this  bond 
to  have  been  forfeited,  there  is  no  conflict  with  the  decisions  be- 
fore referred  to. 

The  complainant  is  a  creditor  of  Charity  Durling  and  John 
Tillman  in  their  own  right,  as  having  paid  money  for  their  joint 
account.  His  remedies  against  them  should  be  exhausted,  before 
this  court  can  interfere  in  his  behalf,  to  reach  the  assets  of  John 
Durling,  the  first  intestate.  If  it  had  been  shown  that  the  com- 
plainant had  sought  in  vain,  by  suit,  to  get  his  money  from 
those,  from  whom  he  had  a  right  and  was  bound  to  seek  it  in 
the  first  instance,  I  will  not  say  a  bill  might  not  have  been  so 
framed  as  to  follow  the  assets  of  the  first  intestate  :  but  until  such 
remedies  are  sought,  I  cannot  see  how  relief  can  be  asked  in  this 
case.  So  far,  then,  as  this  bill  prays  an  account  from  the  sur- 
viving administrator  of  John  Durling,  of  the  assets  of  that  es- 
tate, the  bill  must  be  dismissed,  but  without  costs,  as  she  has  not 
appeared  or  incurred  any  expenses  in  the  case. 

I  have  had  much  doubt  whether  the  remaining  branch  of  the 
bill,  praying  an  account  against  the  representatives  of  Tillman, 
ought  to  be  sustained,  without  making  Charity  Durling  a  party 
in  her  own  right,  and  showing  that  the  money  could  not  be  re- 
covered against  her  at  law,  by  a  return  of  nullalona.  I  do  not 
find  any  case  expressly  so  declaring,  but  I  do  find  such  to  be  the 
practice.  The  right  of  coming  into  equity  upon  the  plain  case  of 
a  creditor  against  executors,  though  it  has  sometimes  been  done, 
has  been  questioned  unless  there  existed  some  special  circumstan- 
ces calling  for  the  interference  of  the  court.  The  right  has  been 
sanctioned  upon  the  pica  of  discovering  assets,  and  lord  Hard- 
wickc,  in  2  Atk.  3G3,  said  that  ho  would  not,  where  Hie  parties 
were  thus  before  him,  turn  them  round  to  a  court  of  law,  for  the 
sake  of  the  expense.  Chancellor  Kent  has  sanctioned  the  genera] 
doctrine  in  a  very  able  opinion,  in  the  case  of  Thompson  v. 
10 


J38  CASES  IN  CHANCERY, 

Hazen  v.  Darling  et  al. 

Brown,  4  John.  Ch.  Hep.  625.  That  was  the  case  of  a  creditoi 
of  a  firm,  (a  simple  contract  creditor,)  and  the  bill  was  filed 
against  the  surviving  partner,  against  whom  they  had  exhausted 
their  remedies  at  law  by  a  return  of  nulla  bona,  and  against  tLe 
representatives  of  the  deceased  partner.  The  bill  was  sustained, 
and  there  was  a  decree  against  the  representatives  of  the  deceased 
partner.  But  there  were  in  the  case  some  peculiar  circumstances 
which  called  for  the  aid  of  the  court. 

It  would  have  been  more  proper  to  have  made  Charity  Burling 
a  party  in  her  own  right,  after  exhausting  the  remedy  at  law ; 
but  it  is  charged  in  the  bill,  and  sustained  by  the  evidence,  that 
she  was  insolvent ;  and  under  such  circumstances,  and  especially 
in  favor  of  a  surety,  I  have  come  to  the  conclusion  that  the  bill 
should  be  sustained  so  far  as  it  prays  an  account  against  the  ad- 
ministrators of  Tillman. 

This  account,  upon  well-settled  authority,  cannot  be  taken  for 
the  benefit  of  the  complainant  alone,  but  must  be  for  the  benefit 
of  all  such  creditors  as  may  choose  to  come  in  before  the  master. 
A  decree  of  this  court  is  a  judgment  from  its  date  in  favor  of  all 
the  creditors,  and  they  are  entitled  to  be  paid  rateably  unless 
they  have  some  legal  priority,  For  the  rule  on  this  subject,  I 
refer  to  the  case  in  4  Johns.  Ch.  Rep.  G25. 

I  shall  order  a  reference  to  a  master,  to  ascertain  the  amount  duo 
the  complainant  for  monies  paid  by  him  on  the.aforesaid  admin- 
istration bond,  and  the  amount  due  to  all  other  the  creditors  of 
J.  Tillman,  deceased,  who  shall  come  ii}  and  contribute  to  tho 
expenses  of  this  suit ;  and  that  the  master  report  the  nature  of 
euch  claims,  whether  by  judgment,  mortgage  or  otherwise ;  and 
that  the  master  give  reasonable  notice,  in  his  discretion,  for  all 
such  creditors  to  come  in  by  a  certain  day.  Also,  that  he  take 
c.:i  account  of  the  personal  estate  of  the  intestate  which  hath 
come  to  the  hands  of  the  said  administrators,  what  is  the  situa- 
tion of  Gaid  administration,  and  whether  they  have  fully  admin- 
is  :crcd  or  not.  All  other  and  further  directions  are  resorvcd. 
Order  accordingly. 


OCTOBER  TERM,  1838.  139 


Miller  v.  Miller. 


JONATHAN  "W.  MILLER  v.  MARTHA  MILLER. 

The  admissions  of  a  party  on  a  charge  of  adultery,  are  not,  as  a  general  rale 
to  be  received  with  much  faith.  They  are  competent  pooof  of  the  ch  .rge 
ou  y  when  connected  with  other  evidence. 

It  is  not  necessary  that  it  should  be  postively  proved  that  a  confession  of 
guilt  by  the  wife  was  made  through  fear;  it  may  be  inferred  from  the  gene- 
ral conduct  of  her  husband  toward  her. 

JONATHAN  "W.  MILLER,  on  the  first  day  of  April,  A.  D. 
1834,  filed  a  petition,  under  the  act  of  13th  December,  1824, 
for  a  divorce  from  his  wife,  Martha  Miller,  charging  her  with 
adultery.  The  cause  was  heard  upon  the  petition,  answer,  and 
proofs.  The  facts  and  circumstances  relied  on,  sufficiently  ap- 
pear in  the  opinion  of  the  chancellor. 

Hartwdl  and  /.  II.  Williamson,  for  -petitioner. 
FrdingUuysen,  for  defendant. 

TJIE  CHANCELLOR.  This  is  a  petition  for  a  divorce  under 
the  act  of  1824.  The  cause  alleged  is  adultery.  The  parties 
lived  together,  as  man  and  wife,  nearly  seventeen  years,  and 
had  a  family  of  five  children.  The  petitioner  states,  that  shortly 
after  his  marriage,  from  a  variety  of  circumstances,  as  well  as 
from  expressions  made  by  his  wife,  he  was  induced  to  believe 
her  unfaithful  to  him ;  but  out  of  regard  to  his  children,  and 
from  fear  of  the  disgrace  which  would  follow  a  public  disclosure 
of  her  conduct,  he  continued  to  reside  with  her  until  the  year 
1828,  when  she  made  to  him  a  confession  of  her  guilt  with  a 
jxirticular  person,  and  he  separated  himself  from  her.  The  an- 
swer of  the  defendant  denies  the  charge  made  in  the  petition, 
that  she  had  been  unfaithful  to  her  marriage  vows,  but  admits 
that  on  one  occasion  she  did,  from  fear  of  her  husband  and 
threats  of  personal  violence,  confess  that  she  had  had  criminal 
connexion  with  the  person  stated  in  the  petition,  but  that  in  tho 


140  CASES  Df  CHANCERY, 


Jiiller  v.  Miller. 


same  conversation  she  again  denied  it,  and  has  ever  since  and 
still  does  deny  on  her  part  any  charge  of  criminal  conduct.'  This 
answer  is  not  under  oath,  and  could  not  be,  under  the  provisions 
of  our  statute. 

The  whole  case  turns  upon  the  truth  or  falsity  of  these 
charges,  and  of  this  issue  the  petitioner  holds  the  affirmative. 
There  is  only  one  witness  to  the  fact  of  adultery  offered  by  the 
petitioner.  That  witness  is  Abraham  Anderson.  His  evidence 
if  to  be  relied  on,  proves  the  case  clearly  and  explicitly.  lie 
states,  that  in  February,  1828,  in  the  morning,  after  breakfast, 
he  saw  the  defendant,  with  "William  I).  Williamson,  in  the  act 
of  adultery :  that  Mr.  Miller  was  at  home,  and  breakfasted  with 
his  family  the  same  morning  :  that  the  house  in  which  the  act  is 
alleged  to  have  taken  place,  was  about  twenty  or  thirty  feet  from 
the  dwelling-house ;  and  that  the  road  to  the  barn  runs  between 
the  two.  This  witness  is  a  laboring  man,  working  sometimes 
in  one  place  and  sometimes  in  another ;  at  one  time  in  Somerset 
county,  at  another  in  Middlesex,  and  at  another  on  the  canal. 
At  this  time  he  is,  and  at  the  time  of  his  examination  he  was,  in 
the  employ  of  the  petitioner. 

There  is  much  in  the  testimony  of  this  witness,  standing 
nlonc,  to  create  distrust  in  my  mind.  The  story  is  of  a  most 
unnatural  character.  That  these  parties  should  have  committed 
such  an  act,  under  such  circumstances,  in  the  day-time,  when 
Mr.  Miller  was  at  home,  and  within  twenty  or  thirty  feet  of  tho 
dwelling,  where  they  must  have  been  exposed  to  certain  detec- 
tion, is  almost  beyond  belief ;  tin's,  too,  by  a  man  who  then  lived 
with  tho  family  as  a  teacher,  and  who,  as  we  may  suppose, 
could  have  secured  a  far  more  favorable  opportunity  for  the  ac- 
complishment of  such  a  purpose.  lie  says  they  were  in  tho 
house  from  fifteen  to  twenty  minutes.  Tho  witness  never  com- 
municated it  to  any  person  but  a  negro  man,  and  gives  as  his 
'reason  for  not  telling  Mr.  Miller  that  lie  had  no  witness  but  tho 
negro.  lie  never  told  Mr.  Miller  down  to  the  very  moment  of 
his  examination,  though  he  made  two  memorandums  of  what 
he  saw  at  the  time,  and  kept  them  in  his  trunk.  These  memo- 


OCTOBER  TERM,  1838.  141 


Miller  v.  Miller. 


randums  are  not  exhibited  by  him.  One  he  gave  to  the  solicitor 
for  the  petitioner.  This  gentleman  says,  that  a  paper  containing 
the  substance  of  what  the  witness  has  stated,  was  handed  him ; 
but  still  it  is  not  produced.  He  was  not  bound,  certainly,  to  do 
so ;  but  to  remove  any  imputation  of  fraud  in  the  witness,  it 
might  legally  and  properly  under  these  circumstances  have  been 
shown  and  offered  to  the.  opposite  party  to  use  if  they  thought 
proper.  But  I  mean  to  draw  no  unfavorable  inference  from  this 
circumstance.  Why  this  man  should  have  made  two  memoran- 
dums of  this  occurence,  and  yet  never  have  mentioned  it  to 
Mr.  Miller,  I  cannot  understand.  I  confess  my  incredulity  in 
such  statements,  especially  from  a  witness  who  from  his  own  ac- 
count of  the  matter  has  no  stronger  claim  to  the  confidence  of 
the  court.  It  would  really  be  a  strange  case  if  this  petitioner, 
who  had  entertained  suspicions  for  seventeen  years,  could  find  no 
other  persons  than  this  man — as  it  would  seem  a  stranger — to 
make  proof  of  misconduct  in  his  wife. 

"William  D.  Williamson,  the  person  with  whom  the  adultery 
is  alleged  to  have  been  committed,  is  examined  as  a  witness  by 
the  defendant,  and  in  the  most  positive  terms  denies  the  charges 
made.  He  uses  this  strong  language  on  the  subject :  "  Witness 
never  had  any  improper  connections  with  Mrs.  Miller  on  the 
hearth,  in  the  room,  nor  near  it,  nor  in  any  other  place,  either 
by  wordt  act  or  deed"  Thus  the  only  positive  evidence  of  the 
fact  of  adultery,  is  as  positively  denied  by  the  very  man  charged 
with  the  act.  There  is  gross  and  palpable  perjury  in  the  one  or 
the  other  of  these  witnesses.  There  is  no  mode  by  which  the 
evidence  can  bo  reconciled.  I  am  not  called  upon  to  say,  nor  is 
there  any  way  by  which  I  can  say,  with  whom  the  crime  rests. 
I  confess,  my  leliefis,  that  the  last  witness  speaks  the  truth. 
Tiie  whole  story  is  improbable  on  the  face  of  it,  and  is  against 
tlvat  character  for  virtue,  which  Mi's.  Miller  appears  from  the  ev- 
idence to  have  sustained  among  all  her  neighbors  for  her  wliolo 
life. 

AM  attempt  is  made  to  impeach  Mr.  Williamson,  on  the  ground 
of  his  religious  belief.  Two  reputable  witnesses  have  clearly 


142  CASES  IN  CHAXCEEY, 


Miller  v.  Miller. 


shown  Ills  disbelief  of  some  of  the  leading  doctrines  of  the  church 
at  this  day,  and  that  he  ridiculed  attending  religious  worship  on 
the  sabbath.  This  evidence,  while  it  affects  the  character  of  the 
witness  in  his  general  views  on  religion,  and  would  constitute,  as 
it  seems  it  did  with  those  gentleman,  a  good  reason  against 
placing  their  children  under  his  instruction,  is  not  sufficient  to 
destroy  his  competency  as  a  witness.  The  conversation  of  the 
witness  with  jndge  Howell  was  of  a  controversial  character — a 
dispute  about  doctrines  and  tenets — and  it  is  true  that  the  wit- 
ness exhibited  a  reckless  feeling  on  these  subjects.  I  do  :iot  find 
that  he  ever  denied  the  existence  of  a  God,  or  a  future  state  of 
rewards  and  punishments. 

Upon  evidence  like  this,  with  a  witness  stating  so  improbable 
a  story,  and  that  contradicted  so  explicitly,  it  cannot  be  expected 
that  I  should  be  willing  to  ground  a  decree  of  divorce. 

There  is,  however,  another  view  to  be  taken  of  this  case. 
The  defendent  has  admitted  her  guilt  to  her  husband.  In  her 
answer  she  declares  that  she  did  admit  it,  but  it  was  done  in 
fear  of  her  husband,  and  under  threats  of  personal  violence,  and 
that  she  recalled  her  words  in  the  same  conversation.  The 
cause  of  the  petitioner  is  evidently  rested  much  on  this  admis- 
sion. When  asked  by  captain  Tuttle,  at  the  time  the  articles  of 
separation  were  signed,  respecting  this  admission,  the  defendant 
did  not  deny  it  as  she  might  have  done  at  that  time — for  it  rest- 
ed between  lier  and  her  husband  alone — but  frankly  declared  she 
had  made  die  admission,  but  that  it  was  false,  and  she  would 
not  make  it  again  for  her  life.  These  admissions  arc  not  to  bo 
rc-ccivcd,  as  a  general  rule,  with  much  faith.  They  are  compe- 
tent when  connected  with  other  proof,  but  not  without.  Hefts  v. 
ftctts,  1  Johns.  Ch.  Rep.  198.  The  reason  assigned  is,  that 
there  is  great  danger  of  collusion  between  the  parties,  or  of  con- 
fessions Icing  extorted.  They  must  and  ought  to  bo  received 
witli  jealousy.  In  the  present  case  there  is  no  reason  to  believe 
that  there  is  any  collusion  ;  but  is  there  not,  from  the  M'holc  case, 
the  strongest  ground  for  believing  that  they  have  been  induced 
by  fear?  There  is,  I  admit,  no  positive  evidence  under  what 


OCTOBER  TLTtM,  1838.  143 


Miller  v.  Miller. 


circnm stances  they  were  made.  But  why  was  the  admission  re- 
called in  the  same  conversation  ?  "Why  did  the  defendant  say  to 
captain  Tuttlo  that  she  would  die  before  she  admitted  it  again? 
Tho  whole  character  of  the  petitioner,  and  his  conduct  towards 
Ilia  wife,  leaves  a  strong  impression  on  my  mind  that  she  has 
stated  the  truth  in  her  answer,  that  she  made  the  admission  from 
fear  of  her  husband.  A  great  many  witnesses  have  been  exam- 
ined, tho  neighbors  of  theso  parties.  They  one  and  all  speak  of 
]\Irs.  Miller  as  a  woman  of  good  and  virtuous  reputation — as 
subdued  wotnan — and  several  of  them  speak  of  her  as  being  in 
fear  of  her  husband.  lie  is  shown  to  have  treated  her  often 
rudely,  even  to  blows,  and  to  have  left  her  in  tears.  Ilis  temper 
13  represented  as  hasty,  easily  put  out,  and  jealous.  His  own 
petition  declares  that  he  was  jealous  of  her  from  the  first.  In- 
stead of  asserting  her  rights,  and  taking  her  own  part,  she  al- 
ways yielded,  and  sunk  down  under  his  bad  treatment.  It  is 
not  necessary  that  it  should  be  positively  proved  that  she  made 
the  confession  under  fear :  it  may  be  inferred  from  the  general 
conduct  of  her  husband  toward  her.  Great  allowance  must  be 
ui-dc  for  a  woman  situated  as  Mrs.  Miller  was.  She  ought  never, 
it  is  true,  to  have  been  forced  into  so  indiscreet  a  course.  She 
was  evidently  broken  down  and  disheartened.  She  did,  howev- 
er, correct  her  error  on  the  spot,  but  it  was  too  late.  Her  hus- 
band seized  upon  the  admission,  and  has  never  yielded  his 
grasp. 

But  the  parties  agreed  to  separate,  and  captain  Tuttle,  with 
his  wife,  who  was  the  sister  of  Mrs.  Miller,  were  sent  for.  On 
that  occasion  Mrs.  Miller  was  willing  to  give  up  every  thing. 
Sli3  then  signed  articles  of  separation,  and  left  her  home,  with 
no  other  than  the  nominal  provision  of  one  dollar.  Is  this  the 
course  of  conduct  to  be  looked  for  in  a  hardened  woman  2  Had 
this-bccn  her  character,  she  would  have  insisted  on  the  uttermost 
farthing.  She  gave  up  every  thing.  She  declared  her  inno- 
cence and  said  she  signed  the  articles  freely.  She  acted,  in  my 
judgment,  like  a  broken-hearted  woman. 

It  is  stated  by  one  of  the  witnesses,  that  afterwards,  at  tho 


144  CASES  IN  CHAKCEEY, 


Miller  v.  Miller. 


Baskenridge  church,  he  asked  captain  Tuttle  whether  he  believ- 
ed these  stories  about  Mrs.  Miller;  and  he  answered  that  he  did 
not — that  he  believed  she  was  an  innocent  woman. 

"Whether,  therefore,  I  look  at  the  positive  proof  by  which  this 
case  is  attempted  to  be  sustained,  at  the  admissions  made  by  the 
defendant,  or  at  the  general  circumstances  connected  with  it,  I 
see  no  ground  for  divorcing  these  parties  on  the  present  applica- 
tion. After  carefully  reading  and  examining  the  whole  evidence, 
I  feel  bound  to  declare  my  decided  impressions  to  be,  that  the 
defendant,  Mrs.  Miller,  is  the  injured  party.  The  evidence  does 
not  satisfy  me  that  she  has  committed  adultery.  The  pe-titioi\ 
must  be  dismissed,  with  costs. 

Petition  dismissed, 

£N"oxE.  An  appeal  was  taken  by  the  complainant  from  the 
decree  in  this  cause.,  The  appeal  was  argued  at  May  term, 
1839,  and  the  decree  of  the  chancellor  affirmed,  with  costs.] 


CASES 


THE  COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW-JERSEY. 
JANUARY    TEEM,    1839. 


SAMUEL  GABWOOD  v.   The  Administrators  and  Heirs  of 
WILLIAM  ELDEEDGE. 

S.  G.  having  purchased  of  the  owner  certain  real  estate,  subject  to  two  mort- 
gages, and  a  judgment,  applied  the  whole  of  the  purchase  money  to  the- 
satisfaction  of  the  mortgages,  being  the  first  iucumbrauces,  aud  caused, 
them  to  bo  cancelled  and  discharged  of  record.  Held,  that  a  purchaser  un- 
der the  judgment,  took  the  property  clear  of  the  incutnbrancj  of  tho  mort- 
gages, uiid  that  8.  (1  was  entitled  to  no  relief  in  equity. 

It  is  a  well  settlel  general  principle,  teat  equity  will  not  relieve  from  the  con-, 
sequences  of  an  act  fairly  done  on  a  full  knowleJge  of  the  facts,  thouqh  un- 
der a  mistake  ofth  law.  Ignoranlia  leg  s  neminem  excusat,  .s  the  general, 
rule  as  we'.l  in  equity  as  at  law. 

But  whera  ft  mistake  has  taken  place  in  the  facts  as  well  as  tho  law  or  where 
some  suppression  of  the  truth,  fraud  or  contrivance  has  be, -a  practise!., 
equity  will  interfere. 

The  person  paying  off  a  mortgage  can  be  substituted  in  th?  place  of  the  mort- 
gagee, only,  where  the  mortgage  is  taken  up  by  a  third  person,  and  not. 
where  it  is  satisfied  by  the  mortgagor  himself. 

A  cancellation  of  a  mortgage,  and  a  discharge  of  record,  unless  effected, 
thron  h  fraud,  accident  or  mistake,  is  an  absolute  bar  aud  discharge  of  the* 
mortgage. 

THE  bill  in  this  cause  was  originally  filed  by  Samuel  Gar- 
wood,  against  William  Eldridge  in  his  life-time.    Eldridge  hav- 
20 


140  CASES  IN  CHANCERY, 


Garwood  v.  Adm'rs  of  Eldridge. 


ing  died  intestate  during  the  progress  of  the  cause,  the  suit  was 
revived  against  his  administrators  and  heirs  at  law.  The  bill 
charged,  that  Josiah  Smith,  being  seized  in  fee  of  a  house  and 
lot  of  land,  containing  between  nine  and  ten  acres,  situate  in 
the  county  of  Burlington,  on  the  27th  of  February,  1810,  exe- 
cuted, together  with  his  wife,  to  "William  Hive  and  John  Evans, 
the  executors  of  John  Smith,  a  mortgage  upon  said  premises,  to 
secure  the  payment  of  a  bond  for  throe  hundred  and  seventy 
dollars,  given  by  Josiah  Smith  to  said  executors,  bearing  date 
on  the  26th  day  of  February,  1810.  This  mortgage  was  re- 
corded on  the  9th  day  of  March,  1810,  and  passed  with  the  bond 
to  Zebedee  Wills  and  Isaac  Haines,  by  assignment,  on  the  10th 
day  of  June,  1817. 

On  the  29th  day  of  April,  1815,  Josiah  Smith  and  wife  exe- 
cuted to  Aaron  Engle,  a  second  mortgage  upon  the  same  prem- 
ises, to  secure  the  payment  of  a  bond  of  six  hundred  and  fifty 
dollars,  given  by  Smith  to  Engle,  which  was  recorded  on  the 
19th  day  of  May,  1815. 

On  the  Cth  day  of  January,  1824,  Josiah  Smith  and  Mary 
his  wife,  in  consideration  of  five  hundred  dollars,  sold  and  con- 
veyed the  said  premises  to  the  complainant.  This  deed  contain- 
ed a  covenant  of  general  warranty,  and  was  recorded  on  the 
27th  day  of  January,  1824.  The  complainant,  in  pursuance  of 
an  understanding  with  Josiah  Smith,  paid  to  Wills  and  Haines, 
in  satisfaction  of  their  mortgage,  one  hundred  and  forty  dollars, 
and  to  Aaron  Engle,  on  account  of  his  mortgage,  three  hundred 
and  sixty  dollars,  being  the  residue  of  the  purchase  money.  The 
contract  for  the  purchase  of  the  land  was  made  by  the  complain- 
ant with  Smith  on  the  151i  day  of  March,  1823,  and  the  exe- 
cution of  the  deed  was  delayed,  by  the  infancy  of  Smith's  wife, 
until  the  6th  day  of  January,  1824.  At  the  time  of  the  pur- 
chase the  mortgages  were  valid  and  subsisting  liens  upon  the 
property,  the  amount  due  upon  them  exceeded  the  whole  pur- 
chase money,  and  Smith  assured  complainant  that  there  wcro 
no  other  liens  upon  the  promises. 

On  the  30th  day  of  May,  1822,  a  judgment  was  entered  up 


JANUARY  TERM,  1839.  147 

Gnrwood  v.  Adm'rs  of  Eldridge. 

in  the  inferior  court  of  common  pleas  of  the  county  of  Burling- 
ton, in  favor  of  the  defendant,  William  Eldridge,  against  Josi- 
r.h  Smith,  upon  a  bond  with  warrant  of  attorney  to  confess  judg- 
ment, given  by  Smith  to  Eldridge,  in  the  penalty  of  one  thon- 
eand  dollars,  conditioned  for  the' payment  of  five  hundred  dol- 
lars on  demand,  with  interest.  A  writ  of  fieri  facias  was  issued 
upon  this  judgment,  and  on  the  13th  day  of  April,  1834,  the  land 
of  Smith  which  was  included  in  the  mortgages  above  mentioned, 
was  sold  by  the  sheriff,  under  said  execution,  and  struck  off  to 
William  Eldridge,  for  three  hundred  and  thirty  dollars.  A  deed 
in  pursuance  of  the  Bale,  was  executed  by  the  sheriff  to  El- 
dridge on  the  19th  day  of  April,  1824. 

The  bill  charged,  that  the  complainant  was  ignorant  of  13- 
dridge's  judgment  at  the  time  of  entering  into  the  contract  and 
talcing  the  deed  from  Smith ;  that  Eldridge  was  informed  of 
complainant's  contract,  and  also  of  the  execution  of  the  deed  by 
Smith;  that  Eldridge  never  informed  complainant  of  liis  judg^ 
mcnt,  but  encouraged  him  to  make  the  purchase ;  that  Eldridge 
Icncw  of  the  existence  of  the  mortgages  upon  the  property;  that 
complainant  paid  the  purchase  money  toward  the  satisfaction  of 
those  mortgages,  and  that  he  caused  one  of  them  to  be  cancelled 
of  record  on  the  27th  of  January,  1824,  and  the  other  on  the 
14th  of  April,  1S24;  that  Eldridge  delayed  proceeding  on  his 
execution  until  the  mortgages  had  been  discharged  ;  that  com- 
plainant was  ignorant  that  by  causing  the  mortgages  to  be  can- 
celled and  discharged,  the  judgment  would  become  a  lien  upon 
the  premises,  being  prior  to  the  complainant's  deed,  or  that  he 
ought  to  have  taken  an  assignment  of  the  bonds  and  mortgages 
to  himself,  to  guard  against  the  judgment  of  Eldridge. 

The  bill  further  charged,  that  the  bond  given  by  Smith  to 
Eldridge  was  given  as  an  indemnity  against  loss  by  reason  of 
liis  Ixj'mg  security  for  Smith  as  constable;  that  the  monies  ad- 
vanced by  Eldridge  had  been  repaid,  and  his  judgment  satisfied, 
prior  to  the  sheriffs  sale  ;  that  Smith  was  wholly  insolvent,  so 
that  complainant  had  no  remedy  upon  the  covenants  in  his 
deed;  and  that  Eldridge  had  commenced  an  action  of  ejectment 


148 


G  irwood  v.  Adm'rs  of  Eldridge. 


at  law,  for  the  recovery  of  the  premises,  under  his  title  derived 
from  the  sheriff. 

The  bill  prayed  that  the  mortgages  might  be  established  and 
confirmed  as  existing  liens  and  incumbrances  upon  the  premises 
for  the  amount  of  principle  and  interest  paid  by  complainant, 
with  interest  from  the  date  of  payment ;  that  an  account  might 
be  taken  of  the  amount,  and  Eldridge  decreed  to  pay  the  same, 
or  that  the  complainant  might  stand  sized  in  the  place  and  stead 
of  the  mortgages,  and  have  a  degree  for  foreclosure ;  or  that  El- 
dridge's  deed  might  be  ordered  to  be  delivered  up  to  be  cancelled, 
and  he  restrained  from  proceeding  at  law. 

An  answer  was  filed  by  the  administrators  and  the  heirs  at  law, 
admitting  the  mortgages,  judgment,  sheriffs  sale,  and  the  eject- 
ment, as  charged  in  the  bill,  b«t  denying  the  satisfaction  of  El- 
dridgc's  judgment,  and  all  fraud  upon  his  part,  and  insisting 
upon  the  legal  rights  acquired  by  Eldridge  under  the  eherifi's  deed. 

The  cause  was  heard  at  October  term,  1838,  upon  the  bill, 
fuoswer,  replication,  and  proofs. 

Watt,  for  complainant. 

Kinsey  and  H.  ~W.  Green,,  for  defendants. 

THE  CHANCELLOR.  A  short  statement  of  facts  will  present 
every  thing  in  this  case  necessary  for  its  decision.  Josiah  Smith, 
being  the  owner  in  fee  of  a  lot  of  land  of  between  nine  and  ten 
acres,  in  the  county  of  Burlington,  executed  with  his  wife  a 
mortgage  on  the  same,  on  the  26th  of  February,  1810,  to  the 
executors  of  John  Smith,  to  secure  a  bond  for  three  hundred 
and  seventy  dollars.  Sarah  Jones  was-  also  a  party  to  this  mort- 
gage, and  there  was  embraced  in  it  a  lot  belongingto  her.  This 
bond  and  mortgage  was  assigned  finally  to  Zcbedee  "Wills  and 
Isaac  lEames.  On  the  29th  of  April,  1815,  Josiah  Smith  and 
his  wife  made  a  second  mortgage  on  tho  eamo  premises,  to  Aa- 
ron Englc,  to  secure  a  bond  for  seven  hundred  and  fifty  dollars, 
ELeso  mortgages  were  both  placed  on  record  in  the  county  of 


JANUARY  TERM,  1838.  149 

Garwood  v.  Adm'rs  of  Eldridge. 

Burlington,  shortly  after  their  execution.  On  the  6th  of  Janu- 
ary, 1824,  the  mortgaged  premises  were  conveyed  by  Josiah 
Smith  and  wife,  the  above  stated  mortgagors,  to  the  complain- 
ant, for  the  consideration  of  five  hundred  dollars.  This  money 
was  applied  to  the  payment  of  the  two  mortgages  on  the  pro- 
perty, on  which  there  was  then  due  about  five  hundred  dollars ; 
upon  which,  by  the  consent  of  both  parties,  they  were  discharged 
and  cancelled  of  record. 

William  Eldridge  obtained  a  judgment  against  Josiah  Smith 
in  the  inferior  court  of  common  pleas  of  the  county  of  Burling- 
ton, on  the  30th  of  May,  1822,  and  issued  execution  thereon  to 
the  sheriff  of  that  county,  returnable  to  the  term  of  August 
thereaf  ter.  This  judgment,  although  long  subsequent  to  the 
date  of  the  cancelled  mortgages,  was  prior  to  the  complainant's 
deed,  and  therefore  at  law  bound  the  property  free  and  clear  of 
incumbrances.  By  virtue  of  this  execution  the  sheriff,  shortly 
after  the  complainant's  purchase,  and  on  the  19th  of  April,  1824, 
sold  and  conveyed  the  aforesaid  premises  to  William  Eldridge, 
the  plaintiff  in  the  execution,  for  three  hundred  and  thirty  dol- 
lars. From  the  evidence  of  John  Crispen,  the  only  witness  ex. 
ainincd  on  this  subject,  it  would  seem  that  the  price  paid  by  the 
complainant  was  a  full  and  fair  consideration  for  the  premises ; 
and  from  Eldridge's  lying  still  with  his  execution,  from  August, 
1822,  until  after  the  complainant  had  discharged  the  mortgages, 
as  well  as  from  the  price  paid  by  him  at  the  sheriffs  sale,  it  is 
to  be  presumed  that  the  property  would  have  brought  nothing 
beyond  the  incumbrances. 

Under  these  circumstances,  the  complainant  asks  the  inter- 
ference of  this  court.  At  law,  it  is  quite  certain,  he  is  without 
remedy ;  for  although  he  may  have  been,  as  he  alleges,  without 
actual  notice  of  the  Eldridge  judgment  at  the  time  he  purchas- 
ed, yet  he  had  constructive  notice  by  the  record,  and  unless  the 
power  of  tliis  court  is  sufficient  to  grant  relief,  the  complainant 
will  have  lost  the  five  hundred  dollars  with  which  he  paitl  off  the 
mortgages,  and  Eldridge  will  have  received  on  his  purchase  the 
exclusive  benefit  thereof.  There  is  then,  to  my  mind,  a  natural 


150  CASES  IN  CHANCERY, 

Garwood  v.  Adm'r.s  of  Eldridge. 

justice  in  the  complainant's  case,  to  which  I  should  be  disposed 
to  extend  relief,  if  I  could  do  so  without  disturbing  well  estab- 
lished principles. 

The  first  ground  upon  which  this  relief  is  asked,  is,  that  the 
complainant  cancelled  these  mortgages  unwittingly,  and  without 
a  knowledge  of  the  legal  effect  of  that  act.  It  is  not  from  any 
mistake  or  want  of  knowledge  of  facts,  but  of  the  law ;  for  as 
to  the  existence  of  the  judgment,  he  had,  or  might  have  had 
full  knowledge,  by  using  the  ordinary  and  proper  precaution  of 
examining  the  public  records.  "  Ignorantia  legis  neminem 
excusat"  is  the  general  rule,  as  well  in  equity  as  in  law.  This 
rule  is  not  without  its  exceptions,  and  it  would  seem  those  ex- 
ceptions are  not  by  any  means  well  settled.  The  American 
cases  have  been  strenuous  in  supporting  the  general  rule,  from 
the  great  danger  of  opening  a  door  for  so  common  a  pretence. 
It  has  been  decided  that  a  court  of  equity  could  not  relieve  an 
obligee  when  he  released  one  joint  obligor,  supposing  the  other 
to  be  bound.  In  the  case  of  JLyon  and  (mother  v.  Richmond 
and  others,  2  John.  Ch.  Hep.  GO,  the  chancellor  says :  "  The 
courts  do  not  undertake  to  relieve  parties  from  their  acts  and 
deeds  fairly  done  on  a  full  knowledge  of  facts,  though  under  a 
mistake  of  the  law.  Every  man  is  to  be  charged  at  his  peril 
with  a  knowledge  of  the  law.  There  is  no  other  principle  which 
is  safe  and  practicable  in  the  common  intercourse  of  mankind.'* 
The  same  principle  is  afterwards  recognized  in  the  case  of  Storrs 
v.  Earlier,  6  John.  Ch.  Rep.  170.  Many  of  the  cases  in  wliich 
exceptions  to  this  general  rule  have  been  allowed,  are  those  in 
which  a  mistake  in  the  facts,  as  well  as  the  law,  has  taken 
place,  or  some  suppression  of  the  truth,  fraud  or  contrivance  in 
the  party.  In  such  cases,  there  can  bo  no  doubt,  it  is  the  pe- 
culiar province  of  this  court  to  interpose.  This  whole  subject, 
with  a  reference  to  the  cases,  will  be  found  ably  and  fully  dis- 
cussed in  1  Storifs  Equity,  121 ;  in  which  it  will  be  found, 
that  able  judge  is  tenacious  of  adhering  to  the  general  principle. 
In  'die  present  case,  I  cannot  bring  myself  to  believe  that  the 
complainant  acted  under  any  misapprehension  of  the  law.  Ho 


TERM,  1839.  151 


Garwood  v.  Adm'rs  of  Eldridge. 


had  purchased  the  property  ;  and  his  plain  course,  believing  as 
he  alleges  he  did,  that  the  property  had  no  other  liens  upon  it 
than  the  two  mortgages,  was  to  take  them  up  and  cancel  them. 
There  is  no  fraud  proved  on  the  part  of  Eldridge,  the  judgment 
creditor.  He  was  not  bound  to  give  any  more  information  of  the 
existance  of  his  judgment,  than  the  records  of  the  court  furnish. 
It  was  the  result  of  carelessness  and  neglect  in  the  party  not  to 
have  examined  at  the  proper  office  for  the  liens  on  the  property. 
It  is  asking  too  much  of  the  credulity  of  the  court,  to  believe  that 
a  man  competent  to  the  transaction  of  business,  and  buying  pro- 
perty, should  not  understand  the  law  upon  tearing  off  the  seals 
and  cancelling  mortgages  of  record.  It  is  far  more  natural  to 
suppose  that  the  complainant,  believing  these  the  only  incum- 
brances,  intended  to  relieve  his  property  from  them  by  their  dis- 
charge and  cancellation.  Upon  this  ground,  therefore,  I  must 
deny  the  complainant  the  relief  here  sought. 

The  remaining  ground  taken  by  the  complainant  is,  that  he 
should  be  placed  in  the  situation  of  the  mortgagees  ;  in  other 
words,  that  new  life  and  action  should  be  given  to  those  instru- 
ments, so  that  they  may  stand  now  in  the  complainant's  hands 
as  subsisting  liens  on  the  property.  There  are  cases,  undoubt- 
edly, in  which  courts  of  equity  have,  after  the  discharge  of  a 
bond  and  mortgage,  substituted  the  person  who  took  them  up 
in  the  place  of  the  mortgagee,  and  kept  them  alive.  Tliis  was 
expressly  recognized  in  the  case  of  Coster,  expartc,  2  John. 
Ch.  Rep.  503.  These  cases  are  where  the  bond  and  mortgage 
are  discharged  by  a  third  person,  and  not  where  they  are  takea 
up  by  the  obligor  himself.  In  fact,  in  the  case  just  cited,  the 
chancellor  declined  making  any  order  for  assigning  the  bond  and 
mortgage,  because  it  had  been  paid  off  by  the  obligor  himself. 
In  the  present  case,  the  bond  and  mortgages  can  hardly  be  said 
to  have  been  taken  up  by  a  stranger  —  they  were  virtually  taken 
up  by  Smith  himself.  This  was  done  with  the  purchase  money 
for  which  he  sold  the  land,  and  that  money  extinguished  the 
incuinbnmccs.  Smith's  deed  covenants  against  al  1  i  ncumbrances, 
and  obliged  him,  therefore,  to  have  them  discharged.  In  such 


152  CASES  IN  CHANCERY, 

Garwood  v.  Adm'rs  of  Eldridge. 

cases,  the  courts  have  refused  to  interfere.     Toulmin  v.  Steele, 
3  Merriv.  221;  Parry  v.    Wright  and  others.  1  Cond.  Ch. 
Rep.  188.     The  complainant  purchased  the  property,  subject  of 
course  to  all  incunibrances ;  and  if  by  his  own  neglect  in  exam- 
ining the  public  records,  he  has  found  himself  embarrassed  by 
this  judgment,  it  is  his  own  fault.     Was  it  his  intention  to  can- 
cel the  mortgages?     I  have  no  doubt  it  was.     He  meant  to  ex- 
tinguish the  incumbrances ;  and  should  they  now  be  reinstated, 
it  would  be  against  the  express  intention  of  the  parties.     What 
right  has  this  court  to  bring  to  life  obligations  which  Smith  him- 
self, the  obligor,  has  taken  up  and  caused,  by  the  understand- 
ing of  all  parties,  to  be  cancelled  on  the  public  records  ?      The 
complainant  purchased  only  the  equity  of  redemption  of  Smith 
in  these  lands,  and  he  was  as  much  bound  to  see  that  the  judg- 
ment was  removed  as  the  mortgages.     There  is  nothing  in  the 
case  looking  like  fraud  or  improper  concealment  of  the  Eldridge 
judgment,  or  mistake  in  cancelling  the  papers,  but  a  mere  neg- 
lect of  complainant  in  not  examining  the  records.     To  interfere 
in  such  a  case,  and  put  tne  complainant  in  the  place  of  the  mort- 
gagees, would  introduce,  in  my  opinion,  a  dangerous  precedent, 
and  encourage  parties  in  the  grossest  negligence.      Should  this 
course  be  taken,  what  shall  be  done  with  the  purchase  by  El- 
dridge ?    By  reason  of  the  property  being  freed  from  all  ineum- 
brances,  he  paid  three  hundred  and  thirty  dollars  for  his  pur- 
chase.     Is  he  to  lose  this  money  ?     Suppose  another  had  pur- 
chased, could  he  be  affected  by  it  ?    And  if  not,  can  the  plain- 
tiff in  the  execution,  standing  as  the  purchaser,  be  any  other- 
wise affected? 

It  must  be  borne  in  mind,  too,  that  the  complainant  not  only 
neglected  to  have  an  assignment  of  these  bonds  and  mortgages 
made  to  him,  and  had  the  seals  torn  off  as  evidence  of  their 
being  discharged,  but  caused  them  to  be  cancelled  on  the  public 
records.  Our  statute  (Revised  Laws,  464)  declares  such  can- 
cellation of  record,  when  the  mortgage  has  been  redeemed,  paid 
nnd  discharged,  to  be  an  absolute  bar  and  discharge  of  the- 
same.  I  am  aware  that  this  statute  has  been  held  repeatedly 


JANUAEY  TEEM,  1839.  153 

Garwood  v.  Adm'rs  of  Eldridge. 

not  to  apply  to  a  case  where  such  cancellation  may  have  taken 
place  through  fraud,  accident  or  mistake.  In  the  present  case, 
the  cancellation  was  made  without  either  fraud,  accident  or  mis- 
take, but  with  the  consent  and  understanding  of  all  the  parties. 
After  the  best  reflection  on  this  part  of  the  case,  and  from  look- 
ing into  the  authorities,  I  am  constrained  to  think  it  would  be 
an  improper  exercise  01  the  jurisdiction  of  the  court,  to  grant  the 
relief  asked. 

The  remaining  point  in  the  case  relates  to  the  Eldridge  judg- 
ment. The  complainant  alleges  that  it  has  been  paid  off.  There 
is  some  evidence  to  that  effect.  It  seems  to  have  been  given  as 
an  indemnity,  and  I  am  willing  to  have  this  subject  more  fully 
inquired  into. 

I  shall,  therefore,  direct  a  reference  to  a  master,  to  ascertain 
and  report  whether  the  Eldridge  judgment  has  been  paid,  when, 
and  under  what  circumstances.     The  question  of  costs,  and  alJ 
other  matters,  are  reserved. 
Order  accordingly. 

CITED  in  Bentley  v.  WMttemore^  0.  E»  #r.  874, 


OASES 

ADJUDGED  IS 

THE  COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW-JERSEY. 
APRIL  TEEM,  1839. 


JOSEPH  BASSETT  and  others  v.  WILLIAM  JOHNSON  and  others. 

Tho  object  of  an  issue  at  law  is  to  inform  the  conscience  of  the  court ;  and  if 
th  •  court  can  be  satisfied  that  substantial  justice  has  taken  place,  the  ver- 
dict will  not  bo  disturbo  >.  on  mere  technical  grounds. 

The  judge  before  whom  the  issue  is  tried,  should  not  only  return  tho  postea, 
but  go  further,  and  furnish  to  this  court  a  fair  statement  of  the  trial.  Hi  j 
certificate  has  always  its  weight. 

It  is  not  necessary  that  the  rep  rt  of  the  judge  should  state  the  evidence  and 
give  a  mimito  history  of  t  :o  trial.  All  that  can  be  required  of  him  is,  th..t 
ho  state  the  general  character  of  the  ev.den.  e  offered,  tlio  part  objected  to, 
and  t  e  decision  made  upon  those  objections,  with  his  charg )  to  tho  ju  y. 

If  any  difficulty  exist  in  relation  to  the  report  of  tee  judge,  tho  court  will  not 
for  this  cause  nlonc  grant  a  new  trial,  but  will  ca  1  on  the  judge  for  an  ad- 
tional  report  of  the  case. 

Where  the  issue  to  be  determined  is,  \vhether  the  erection  of  a  cert  in  dam 
"has  seriously  and  permanently  affected  and  injured  tho  me  idows  of  the 
complainants  lying  above  it,"  it  is  not  competent  on  the  trial  for  the  de- 
f  ndant  to  prove  that  if  (ho  d.tm  were  completed,  th&  injury  complainei  of 
would  bo  remedied. 

Upo:i  amotion  for  a  nsw  trial  of  an  issue  at  law,  it  cann  t  bo  objected  that 
tho  issue  formed  is  not  broad  onougli,  andth.it  other  inquiries  ought  lo 
hav  •  been  iuvol  ed  in  it. 

An  i  jury  may  bo  permanent,  in  the  sense  of  the  term  used  in  the  issue, 
without  continuing  for  ever. 


APRIL  TERM,  1838.  155 


Biibsett  et  al.  v.  Johnson  et  al. 


On  a  motion  for  a  new  trial,  the  defendants  cannot  complain  that  tho  i-sue 
was  tried  by  tho  justice  beforo  whom  the  jury  was  struck,  if  they  permitted 
tho  jury  to  be  struck  and  the  trial  to  be  had  without  objection. 

TIIE  bill  in  tliis  cause  was  filed  on  the  17th  of  July,  1835, 
for  an  injunction  to  restrain  tho  defendants  from  "  obstructing 
Salem  creek,  or  erecting  a  dam  or  stopping  therein,  and  from 
impeding  the  flow  or  fall  of  the  tides  in  said  creek,  and  from  al- 
tering the  same  in  any  manner  whatever."  The  bill  charged, 
that  the  defendants  were  engaged  in  erecting  a  dam  in  Salem 
creek ;  that  the  dam  prevented  the  draining  of  the  meadows  of 
the  complainants  lying  above  it,  and  rendered  them  useless,  caus- 
ing them  to  be  overflowed,  &c. 

Before  granting  the  injunction,  the  chancellor  directed  a  copy 
of  the  bill  to  bo  served  on  the  defendants,  and  notice  of  the  ap- 
plication be  given.  The  motion  for  the  injunction  was  argued 
on  the  23d  of  July,  1835,  both  parties  using  cxparte  affidavits 
upon  the  healing ;  and  on  the  8th  of  August,  1835,  the  injunc- 
tion was  allowed. 

Tho  defendants  having  answered,  moved  to  dissolve  the  in- 
junction, but  the  motion  was  disallowed.  At  January  term, 
1836,  the  testimony  having  been  closed,  the  cause  was  heard 
before  chancellor  Yroom,  upon  the  bill,  answer,  replication  and 
proofs  ;  and  on  the  8th  of  April,  183C,  the  chancellor  denied  the 
motion  to  dissolve  tho  injunction,  and  directed  an  issue,  as  fol 
lows  :  "  It  is  ordered,  adjudged  and  decreed,  and  the  chancelloi 
by  virtue  of  tho  power  and  authority  of  this  court  doth  order, 
adjudge  and  decree,  at  the  instance  and  upon  tho  motion  of  tho 
complainants  by  their  said  counsel,  that  a  feigned  issue  be  form' 
cd  in  the  supremo  court  of  judicature  of  New-Jersey,  and  tried 
in  the  ordinary  manner,  between  tho  said  Joseph  Bassett,  Thomas 
Sinnickson  and  John  Sinnickson  as  plaintiffs,  and  Isaac  John- 
son and  "William  Johnson  as  defendants,  by  a  jury  of  tho  county 
of  Salem,  at  tho  next  circuit  court  to  be  holdcn  in  said  county, 
to  inquire,  ascertain  and  determine,  by  the  verdict  of  said  jury, 
whether  tho  erection  of  the  dam  by  tho  defendants,  mentioned 
ia  th6  pleadings  of  this  cause,  has  seriously  and  permanently 


150  CASES  IN  CHANCERY, 


Bassett  et  al.  v.  Johnson  et  al. 


affected  and  injured  the  meadows  of  the  complainants  lying 
above  it ;  and  that  either  party  may  notice  the  cause  for  trial ; 
,  and  the  defendants  in  the  issue  may  carry  down  the  record  by 
!  proviso,  in  order  that  the  trial  may  be  had  at  the  ensuing  cir- 
cuit ;  and  that  a  special  jury  will  be- ordered  by  this  qourt  on  the 
application  of  either  party,  subject  to  the  preference  given  to  the 
plaintiffs  by  the  rules  of  the  supreme  court ;  and  that  copies  of 
the  depositions,  certified  by  the  clerk  of  this  court,  be  read  and 
received  in  evidence  on  said  trial,  as  rebutting  evidence  or  as 
original  evidence,  in  case  the  witnesses  who  testified  to  the  samo 
be  dead,  or  from  sickness  or  other  sufficient  cause  be  unable  to 
attend  said  trial ;  and  that  no  new  witnesses  shall  be  produced  at 
said  trial,  without  giving  ten  days'  notice  of  the  intention,  with 
the  name,  addition  and  place  of  abode  of  such  witnesses ;  and 
that  all  further  directions  be  reserved  until  the  said  issue  shall  be 
tried,  and  the  postea  returned  to  this  court." 

The  issue  was  tried  in  the  Salem  circuit  at  June  term,  1838, 
before  the  honorable  John  Moore  White,  one  of  the  justices  of 
the  supreme  court,  by  a  struck  jury,  who  found  the  issue  affirm- 
atively, in  favor  of  the  complainants.  Upon  the  coming  in  of 
the  postea,  with  the  judge's  certificate,  &c.  at  July  term,  1808, 
the  defendants  obtained  a  rule  to  show  cause  why  the  verdict 
should  not  bo  set  aside  and  a  new  trial  granted.  The  cause  was 
argued  at  the  January  term,  1839.  The  reasons  relied  upon  by  the 
defendants  for  granting  a  new  trial,  sufficiently  appear  in  the 
opinion  of  the  chancellor. 

Jejfers,  for  defendants. 

A.  L.  EaJdn,  contra.  In  case»  pending  in  this  court,  when- 
ever it  becomes  material  to  ascertain  a  particular  question  of  fact, 
and  it  cannot  bo  safely  decided  upon  the  evidence  produced,  the 
chancellor  will  direct  that  the  question  be  tried  before  a  jury  in  a 
court  of  common  law,  that  their  verdict  may  inform  and  satisfy 
the  conscience  of  the  court.  Elm.  Dig.  58,  sec.  33 ;  Rev. 


APKIL  TEEM,  1839.  157 


Bftssott  ct  al.  v.  Johnson  ot  nl. 


494,  sec.  37 ;  Bldkds  CJi.  319 ;  I  N&uol.  350 ;  2  Madd.  476 ; 
1  Saxton,  205,  215,  427, 433. 

The  form  of  the  issue  is  settled  by  order  of  the  conrt,  and  di- 
rects the  particular-matters  which  sliall  be  produced  or  allowed  in 
evidence.  Lldkds  Ch.  319  ;  1  Newl.  351. 

After  repeated  hearings,  wherein  the  matter  came  up  in  every 
possible  shape,  the  chancellor,  before  directing  tho  issue,  remark- 
ed, "  That  the  meadows  of  the  complainants  were  seriously  af- 
fected, was  proved  before  the  injunction  was  granted,  and  the 
weight  of  evidence  confirms  it."  "  The  meadows  were  not  co 
much  injured  since  the  dam  lias  settled."  "  It  is  a  fact  (i.  e.  the 
injury)  the  decision  of  which,  under  all  the  circumstances,  is 
peculiarly  proper  for  the  decision  of  a  jury ;  and  if  the  fact  be 
once  ascertained,  whether  the  erection  be  or  be  not  a  nuisance, 
there  will  be  but  little  difficulty  in  settling  the  case." 

"We  must  yield  to  the  conviction  that  the  chancellor  was  well 
apprized  of  every  part  of  the  case,  before  he  settled  by  his  order 
the  particular  matters  which  should  be  produced  or  allowed  in 
evidence.  Notwithstanding  all  this,  we  are  met  with  the  com- 
plaint of  the  defendants, "  that  the  judge  overruled  the  issue ;  the 
depositions  of  deceased  and  absent  witnesses  were  only  allowed  to 
be  read  piece-meal ;  that  part  relative  to  complainant's  remedy 
was  rejected ;  that  their  offers  to  show  the  state  of  the  dam, 
and  that  the  completion  of  it  would  benefit  the  meadows,  were 
not  allowed ;  that  the  water  ran  over  the  dam  ninety  feet  wide, 
two  to  two  and  a  half  feet  deep,  which  would  not  be,  if  the 
dam  was  completed ;  and  that  the  meadows  were  not  properly 
ditched." 

If  the  judge  did  reject  such  evidence,  he  most  assuredly  did 
right,  and  the  defendants  were  wrong  in  offering  it,  and  com- 
plaining of  such  rejection.  The  only  possible  question  or  matter 
that  by  the  rules  of  law,  of  practice,  or  common  sense,  can  be 
tried  or  proved,  is  the  issue. 

"What  is  an  issue  f     "A  single,  certain  and  material  point,  is- 
suing out  of  the  allegations  or  pleadings  of  plaintiffs  and  defen 
dants."     2  Tidd's  Pr.  C65.     "  A  mere  issue  of  fact,  is  whero 


158  CASES  IN  CHANCEEY, 

Trenton  Banking  Co.  v.  Woodruff  et  til. 

both  parties  rest  the  fate  of  the  cause  upon  the  truth  of  the  fact 
in  question."  3  £1.  Com.  315  ;  Jac.  LOAD  Diet,  title,  Issue. 

When  the  parties  had  agreed  upon  the  point,  that  single  point 
only  was  to  be  tried,  whether  the  fact  was  so,  and  not  the  mere 
speculative  opinion,  &c.  how  it  would  be,  or  what  would  be  the 
effect  on  the  meadows  if  the  dam  was  different,  or  was  com- 
pleted. The  complainants  came  prepared  to  prove  the  issue,  on 
their  part,  to  wit,  the  fact  of  the  injury,  and  not  to  combat  the 
ideas  or  fancies  of  consequences. 

Such  evidence  could  not  be  legally  admitted.  "  The  evidence 
is  governed  by  the  pleadings  in  all  cases ;  it  being  necessary  to 
prove  what  is  put  in  issue,  andno  more."  Tidd,  734:.  "  The 
jury  are  only  sworn  to  try  the  matter  in  issue  between  the  par- 
ties, so  that  nothing  else  is  properly  before  them."  B.N.P.  298. 
"  The  sole  end  of  evidence  is  to  ascertain  the  disputed  fact  or 
point  in  issue — one  side  or  the  other — and  no  evidence  ought  to 
bo  admitted  to  any  other  point."  1  Ph.  Emd.  126,  [131,]  140, 
[147.]  "  As  the  business  of  trial  is  to  ascertain  the  truth  of  the 
allegations  put  in  issue,  no  evidence  is  admissible  which  does 
not  tend  to  prove  or  disprove  the  issued  joined."  1  Stark  Eo.  387. 

The  judge  was  bound  to  confine  the  evidence  to  the  single 
certain  point  in  issue,  to  wit,  whether  the  erection  cf  the  dam  by 
the  defend  ants  has  seriously  and  permanently  injured  the  mea- 
dows of  the  complainants  lying  above  it.  Whether  the  dam 
erected  has  injured  ;  not  what  would  be  the  consequences  of  an 
alteration,  amendment  or  completion  of  that  dam ;  not  matters 
of  opinion,  but  a  fact ;  not  effects  and  consequences,  but  matters 
done,  past,  executed. 

Tho  question  was  plain  :  Ha/oe  the  meadows  been  injured  by 
the  erection  of  the  dam  ?  To  put  this  matter  at  rest,  however, 
let  us  look  at  the  chancellor's  order.  He  ordered  that  a  feigned 
issue  should  be  formed  in  the  supreme  court,  and  tried  in  the  or- 
dinary manner,  &c.  "  by  a  jury  of  the  county  of  Salem,  to  in- 
quire, ascertain  and  determine,  by  the  verdict  of  said  jury, 
whether  the  erection  of  the  dam  by  the  defendants,  mentioned 
in  the  pleadings  of  this  cause,  has  seriously  and  permanently 


APRIL  TERM,  1839.  150 


Bussatt  ot  nl.  v.  Johns  in  ot  ai. 


r.flcctcd  and  injured  the  meadows  of  the  complainants  lying 
above  it." 

What  dam  ?  The  dam  mentioned  in  the  pleadings,  as  it  wag 
then,  April  8th,  1836 ;  not  how  it  would  be.  The  very  fact  ol 
offering  evidence  to  prove  that  the  meadows  would  not  be  injured 
if  the  dam  was  completed,  is  an  admission,  prima  facie,  that 
they  aro  injured  by  that  dam. 

Another  ground  of  objection  was,  "  because  the  defendants 
were  not  permitted  to  read  the  bill  and  answer."  The  chancellor 
ordered  the  depositions  of  the  deceased  and  absent  witnesses  to 
be  read  in  evidence,  and  in  such  cases  the  bill,  answer,  &c.  are 
not  permitted  to  be  read.  BlaMs  Ch.  319 ;  2  Madd.  477. 

And  further :  "  The  court  would  not  permit  the  law  author- 
ising J.  D.  to  erect  the  dam,  nor  his  grant  to  defendants,  John- 
sons." If  the  right  had  been  the  qusstion,  then,  perhaps,  they 
might  complain ;  but  their  right  tc  dam  the  creek  is  neither 
questioned  or  doubted.  Such  a  grant  has  been  repeatedly  de- 
cided to  be  constitutional,  (2  Peters,  245,  251,  7  Ibid,  243 ; 
3  Story's  Com.  250,  c&<?.)  and  so  decided  in  this  very  court,  on  the 
appl ication  for  the  injunction.  But  the  maxim,  "  Sic  utere  tuo  ut 
alienum  nan  ladas"  is  not  thereby  abrogated,  or  according  to 
the  modern  acceptation  "  expunged."  Such  a  grant  or  charter 
may  save  a  party  from  prosecutions,  indictments  by  the  pubh'c, 
but  is  no  protection  for  injuries  to  private  property. 

After  five  successive  successful  decisions  and  findings  in  favor 
of  the  complainants,  it  is  to  be  presumed  that  the  conscience  of 
the  court  is  (or  at  least  ought  to  be)  satisfied.  For  this  purpose 
the  feigned  issue  was  directed.  "  And  whenever  such  is  the 
case,  and  upon  the  whole  the  court  is  convinced  that  justice  has 
been  done,  though  the  chancellor  may  think  some  evidence 
improperly  rejected  at  law,  he  is  at  liberty  to  refuse  a  new 
trial.  2  Madd.  480 ;  1  NwoL  353. 

THE  CHAUCELLOB.  When  this  cause  was  brought  to  a 
hearing,  a  former  chancellor,  in  the  exercise  of  a  very  proper 
and  reasonable  discretion,  Uirected  an  issue  at  law  to  ascertain 


160  CASES  IN  CHANCERY, 


Bassett  efc  rl.  v.  Johnson  et  al. 


an  important  fact.     The  complainants  are  owners  of  meadow 
lands  adjoining  Salem  Creek,  a  navigable  stream  in  the  county 
of  Salem,  which  they  allege  are  injured  by  a  dam  in  the  pro- 
cess of  erection  on  that  creek  by  the  defendants.     The  object  of 
the  bill  is  to  enjoin  the  further  building  of  the  dam,  and  to  abate 
it  as  a  private  nuisance.     The  great  question  in  the  cause  was, 
whether  the  dam  did  in  fact  injure  the  meadows  so"  as  to  justify 
the  interference  of  the  court.     There  was  a  diversity  of  opinion 
on  this  subject,  as  the  evidence  disclosed.     Among  the  witnesses, 
men  entitled  to  the  confidence  of  the  court  took  different  sides 
and  entertained  widely  different  views.     The  chancellor,  under 
these  circumstances,  (although  it  is  plainly  to  bo  inferred  from 
what  he  says  that  the  weight  of  evidence  inclined,  in  his  opinion, 
in  favor  of  the  complainants,)  directed  an  issue  to  ascertain  and 
determine,  by  the  verdict  of  a  jury,  whether  the  erection  of  the 
aforesaid  dam  "  had  seriously  and  permanently  affected  and  in- 
jured the  meadows  of  the  complainants  lying  above  it."     This 
issue,  it  appears  by  the  postea  returned,  was  tried  before  his  honor 
justice  "White,  one  of  the  associate  justices  of  the  supreme  court, 
at  a  circuit  court  in  the  county  of  Salem,  and  a  verdict  rendered 
in  favor  of  the  complainants,  affirming  their  allegations  respect- 
ing the  dam,  in  the  words  of  the  issue.     This  trial  having  taken 
place  in  the  very  county  in  which  the  lands  are  situated,  where 
the  witnesses  arc  all  known  and  their  means  of  judging  fully 
before  the  jury,  should  not  be  slightly  disturbed,  and  especially 
as  the  judge  himself  has  certified  that  the  verdict  is  entirely  sat- 
isfactory to  him.     The  object  of  this  issue  is  to  inform  the  con- 
science of  the  court ;  and  if  I  can  be  satisfied  that  substantial 
justice  has  taken  place,  I  should  not  be  willing,  on  mere  tech- 
nical grounds,  to  disturb  the  verdict.     The  defendants,  however, 
ask  to  have  a  new  trial ;  and  it  is  due  to  them  to  look  into  their 
reasons  separately,  and  see  whether  any  are  sufficient  to  call  for 
another  investigation.     The  rule  of  a  court  of  equity,  in  grant- 
ing new  trials  on  feigned  issues,  will  be  found  fully  consider- 
ed in  the  case  of  Van   Alst  v.  Hunter,  5  Johns.   Ch.  Rep. 
US 


APIUL  TERM,  1839.  1G1 


Bussott  et  al.  v.  Johnson  ct  al. 


Tho  first  reason  assigned  is,  that  the  judge  who  tried  tho  issue 
has  not  made  a  report  of  the  trial ;  or  rather,  as  I  suppose,  that 
such  report  is  not  as  full  as  it  should  have  been.  He  has  mado 
a  report.  That  the  judge,  beyond  returning  the  postea,  shoull 
go  farther,  and  furnish  a  fair  statement  of  the  ^rial  to  this  court, 
bundantly  proper,  and  required  by  the  practice  in  such  cases. 
In  fact,  his  certificate  has  always  its  weight.  But  what  that  re- 
port must  contain,  is  another  question.  The  objection  stated  is, 
that  the  report  is  not  full  enough ;  that  it  should  state  the  evi- 
dence and  give  a  minute  history  of  the  trial.  I  cannot  think 
there  is  any  necessity  for  imposing  this  duty  on  the  judge.  "Why 
should  he  state  the  whole  evidence  ?  That  was  to  be  settled  by 
the  jury.  The  very  object  of  the  issue  was,  to  confide  the  facts 
to  their  determination.  This  court  would  not,  after  taking  thi.3 
step,  undertake  to  settle  the  facts  embraced  by  the  issue.  The 
judge  has  stated  the  general  character  of  the  evidence  offered, 
the  part  objected  to,  and  the  decision  made  upon  those  objections, 
with  his  charge  to  the  jury.  This  was  clearly  all  that  could  be 
required  from  him.  But  if  any  difficulty  existed  on  tin's  subjeci 
I  should  not  for  this  cause  grant  a  new  trial,  but  should  call  on 
the  judge  for  an  additional  report  of  the  case. 

The  second  objection  is,  that  the  judge  overruled  competent 
evidence.  The  defendants  offered  to  prove,  that  if  the  dam  was 
completed  the  injury  complained  of  would  be  remedied.  This 
the  judge  overruled.  At  first  view  there  appeared  to  be  some- 
thing in  the  objection ;  but  upon  further  reflection,  I  am  perfect- 
ly satisfied  the  decision  was  right.  What  was  the  issue  ?  Not 
what  might  be  the  result  upon  any  supposable  state  of  things, 
but  whether  in  fact  the  dam  in  its  then  condition  had  caused  tho- 
injury.  To  allow  evidence  founded  upon  mere  speculation  as  to 
what  might  or  might  not  be  the  result  on  any  other  than  tho 
case  as  it  then  stood,  would  be  to  open  a  wide  range  of  investi- 
gation, and  could  in  no  way  determine  the  precise  issue  before 
the  court.  It  was  said  on  the  argument  that  the  issue  was  not 
made  broad  enough ;  it  should  have  called  for  an  inquiry  how 
far  the  injury  was  "  irreparable,"  as  well  as  "  permanent."  But 
22 


1C2  CASES  IN  CHANCERY, 

Bassett  et  al.  v .  Johm  on  et  al. 

that  is  a  matter  which  we  cannot  inquire  into  now.  The  issue 
has  been  made  and  acted  upon,  and  the  only  point  to  settle  here 
is,  whether  the  evidence  was  proper  within  the  issue  as  framed. 
It  is  quite  certain  the  chancellor  never  intended  the  issue  to  em- 
brace this  matter ;  for  in  his  opinion  he  says,  "  whether  the  dam, 
if  completed,  will  or  will  not  permanently  and  materially  effect 
the  rights  and  property  of  the  complainants,  is  rather  matter  of 
opinion  than  of  fact.  It  is  a  consequence,  and  not  a  matter  i/n 
£>raesenti" 

The  third  objection,  is  to  the  charge  of  the  judge.  The  lead- 
ing object  of  the  charge,  which  I  have  carefully  examined,  is  to 
draw  the  attention  of  the  jury  to  the  issue  before  them  and  the 
matters  necessary  for  them  to  determine.  After  stating  the  issue, 
he  explains  the  meaning  of  the  words  affected  or  injured,  and 
of  the  words  serious  injury  and  permanent.  Nothing  could  be 
moro  proper,  nor  do  I  see  any  thing  io  complain  of  in  the  plain 
meaning  conveyed  by  this  charge.  The  explanation  given  by 
i,hc  judge  to  the  word  "  permanent,"  was  most  criticised  on  the 
/.rgumcnt  j  but  it  is  surely  correct  to  say  that  an  injury  may  be 
permanent,  in  the  sense  of  the  word  used  in  the  issue,  without 
continuing  for  ever.  This  was  all  that  was  intended  to  be  ex- 
plained. The  injury  to  be  permanent,  it  is  repeatedly  stated, 
must  be  something  more  than  a  mere  temporary  inconvenience  ; 
it  must  be  lasting.  Many  cases  are  put,  showing  a  permanent 
injury,  though  not  continuing  for  ever,  as  the  common  one  of 
cutting  down  an  orchard,  although  a  new  one  might  be  planted 
v/hich  might  in  process  of  time  be  even  better  than  the  one  cut 
down.  I  can  see  nothing  in  this  charge  likely  to  draw  the  jury 
from  the  true  question  before  them,  but  by  its  tenor  and  fair  con- 
struction it  was  calculated  to  confine  their  minds  to  the  very 
point  it  was  intended  they  should  settle. 

The  fourth  objection  is,  that  the  jury  was  struck  before  the 
justice  who  tried  the  cause.  It  is  a  sufficient  answer  to  this  ob* 
jection,  that  the  defendants,  by  striking  the  jury  and  proceeding 
to  trial  without  objection,  have  waived  their  rights  now  to  com- 
plain. After  going  to  trial  without  intimating  any  difficulty  on 


APRIL  TEEM,  1839.  103 


Dassttt  et  nL.  v.  Johnson  ot  a!. 


this  subject,  it  would  bo  against  all  rule  now  to  allow  them  to 
avail  themselves  of  sucli  an  objection. 

The  last  objection  is,  that  the  deposition  of  Benjamin  Gris- 
cum,  taken  in  1821,  was  not  received  as  evidence.  That  depo- 
sition could  have  no  bearing  on  the  issue,  and  was  properly  re- 
jected. 

I  see  notliing  in  any  of  the  reasons  assigned  which  will,  in  my 
judgment,  justify  me  in  ordering  any  further  trial  of  this  issue. 
The  case  seems  to  have  been  fairly  settled  after  a  very  tedious  in- 
vestigation, and  should  put  an  end  to  the  case  as  far  as  the  issue 
io  concerned,  and  especially  so  as  the  judge  who  tried  the  cause 
is  satisfied  with  it.  The  motion  f  or-a  new  trial  must  therefore  be 
denied. 

Motion  denied,  with  costs. 

.  CITED  in  Black  v-  Lamb,  1  Beas.  113. 


JIuon  CxsniAcK  v.  WILLIAM  JOHNSON,  jun.  and  others. 

»-\  equity  the  creditors  cf  a  partnership  have  a  right  to  be  first  paid  oat  of  (he 
partnership  property,  in  preference  to  the  creditors  of  the  individual  part- 
ners. 

After  the  debts  of  a  firm  ere  satisfied,  the  residue  of  the  property  belongs  to 
the  individual  partners,  and  can  then,  and  then  only,  be  applied  to  tho  pay- 
ment of  their  individual  creditors. 

Whether  an  iujauc  ion  ought  to  issue  upon  a  bill  for  an  account  of  the  part- 
nership, to  restrain  the  sheriff,  upon  an  execution  at  law  against  one  of  th« 
psriners,  from  soiling  the  partnership  property  ? — Qu. 

As  respects  third  persons,  a  different  rale  prevails  in  regard  to  silent  partner- 
ships from  that  which  obtains  in  tho  case  of  open  partnerships. 

At  lv»-,  (he  visible  partner,  if  sued  alone,  cannot  plead  in  abatement,  that  he 
hua  a  dormant  partner;  and  a  creditor  m  ly  at  hiselcction  sue  either  the  visi- 
ble partner  alone,  or  join  any  latent  partner  ho  may  discover. 

Those  funds  shall  be  liable  (to  the  claim  of  a  creditor)  on  which  the  credit  is 
given.  In  an  open  partnership,  the  credit  is  given  to  the  firm,  and  to  the 
goods  they  are  possessed  of,  and  a  partnership  creditor  sha.l  be  first  paid  oat 
of  them  ;  bat  if  the  partner  be  unknown,  the  credit  is  given  to  the  visible 
partner  only,  and  the  goods  in  his  possession  are  supposed  to  be  hU  own  ; 


1C4  CASES  IN  CIIAKCEK1-, 


Cammack  v.  Johnson  et  al. 


ind  in  such  case,  the  discovery  of  the  latent  partner  cannot  give  any  prefer* 
ence  to  a  partnership  creditor. 

As  between  the  partners  themselves, 'there  seems  to  be  no  reason  to  make  any 
distinction  in  their  rights,  whether  any  are  dormant  or  not  ;  but  us  to  bo 
public,  it  is  necessary  to  prevent  injustice  towards  creditors  that  this  differ- 
i  nee  should  be  observed. 

The  execution  creditor  (in  the  case  of  a  silent  partnership)  has  his  remedy 
complete  against  all  the  efforts  of  the  visible  partner,  and  again3t  all  the 
effects  which  belong  to  him  and  his  dormant  partner,  as  partners,  and  it 
make3  no  difference  whether  the  debt  was  contracted  by  the  debtor  on  tho 
partnership  account  or  on  his  individual  account. 

If  the  bill  of  complaint  charges  the  existence  of  a  partnership,  without  stating 
its  character,  an  answer  by  the  defendants  that  the  partnership  is  dormant 
and  unknown  to  them,  is  responsive  to  the  bill,  and  need  not  be  sustained 
by  proof. 

1  ho  power  of  dissolving  injunctions,  as  well  as  of  gran  ting  them,  must  ne- 
cessarily rest  much  in  the  discretion  of  the  court,  and  should  be  exercised 
in  such  way  as  to  prevent  the  restraints  by  injunction  from  working  unne- 
cessary delay  and  injustice  ta  parties. 

This  court  will  not  sustain  an  exception  to  a  judgment  at  law  on  the  ground 
of  irregularity. 

Receivers,  being  officers  of  the  court,  are  at  all  times  entitled  to,  and  must 
receive,  its  advice  anJ  protection. 

THE  corjplainant's  bill,  filed  on  the  24th  of  February,  1838, 
charges,  that  the  complainant  and  "William  Johnson,  jun.,  in 
May,  1833,  entered  into  partnership  in  the  business  of  manu- 
facturing leather,  in  the  city  of  Newark.  By  the  terms  of  the 
partnership,  they  were  to  be  equal  partners  and  sharers  in  the 
profits  of  said  business,  and  equally  liable  for  all  losses.  The 
business  was  to  be  conducted  in  the  name  of  William  Johnson, 
jun.  The  partnership  continued  up  till  the  time  of  filing  the 
bill,  and  became  liable  for  a  large  amount  of  debts  contracted  by 
tho  partnership,  which  are  entitled  to  be  first  paid  out  of  the  part- 
nership funds.  That  during  the  continuance  of  tho  partnership, 
the  said  William  Johnson,  junior,  beoame  largely  indebted  on  his 
own  individual  account,  arising  out  of  transactions  not  connect- 
ed with  tho  business  of  said  partnership.  That  the  said  John- 
son, having  wrongfully  possessed  himself  of  all  the  partnership 


JULY  TERM,  1838.  105 


Cam  mack  v.  Johnson  et  al. 


property,  exercised  entire  control  over  it  as  if  no  partnership  ex- 
isted ;  and  after  having  so  become  possessed  of  the  partnership 
effects,  he  confessed  three  several  judgments,  which  were  entered 
up  against  him  in  the  supreme  court ;  one  in  favor  of  John  E. 
Kcan  and  Abraham  Coates,  for  two  thousand  nine  hundred  and 
eighty-seven  dollars ;  one  to  Robert  C.  Stoutenburgh,  Elihu  Day 
and  Alvan  Heddeii,  for  two  thousand  five  hundred  and  seventy- 
four  dollars  and  forty-seven  cents ;  and  another  to  the  said  Ro- 
bert C.  Stoutenburgh,  Elihu  Day  and  Alvan  Iledden,  for  one 
thousand  four  hundred  and  thirty-seven  dollars  and  fifteen  cents. 
That  executions  were  immediately  issued  upon  all  the  said  judg- 
ments, and  put  into  the  sheriffs  hands  at  the  same  time,  with  the 
understanding  and  direction  to  the  sheriff  that  neither  was  to  bo 
considered  as  having  the  priority  over  the  others,  but  that  each 
was  to  be  entitled  to  a  rateable  proportion  of  the  proceeds  of  the 
sales.  That  the  sheriff  had  advertised  the  stock  of  the  said  part 
nership,  so  being  in  the  possession  of  the  said  William  Johnson, 
junior,  for  sale  on  the  26th  day  of  February,  1838,  (being  tw 
days  after  the  filing  of  the  bill.)  That  from  the  fact  of  sai 
Johnson  having  the  entire  charge  of  the  books,  the  complaina 
was  unable  to  tell  what  proportion  of  debts  due  from  said  fi 
were  included  in  said  judgments,  and  what  proportion  consisted 
of  debts  due  from  said  Johnson  individually  and  arising  out  of 
transactions  unconnected  with  the  business  of  the  partnership —  • 
but  the  complainant  believes,  and  therefore  charges,  that  a  large 
proportion  of  the  amount  of  said  judgments  consists  of  debts  and 
liabilities  arising  out  of  transactions  of  the  said  Johnson  discon- 
nected with  the  business  of  said  partnership,  and  for  which  the 
said  partncrsliip  is  in  no  way  liable.  That  after  the  levy  under 
said  executions,  the  said  Johnson  made  sales  of  the  partnership 
property  so  levied  on,  to  the  amount  of  nine  hundred  dollars, 
as  deponent  is  informed  and  believes  to  be  true. 

The  bill  prays  an  account  of  the  partnership  dealings  and 
transactions,  and  the  appointment  of  a  receiver  to  receive  and 
collect  the  partnership  debts  and  monies,  to  the  end  that  tho 
same  may  be  applied  to  the  payment  of  the  partnership  debts ; 


166  CASES  IN  CHANCERY, 


Cammack  v.  Johnson  et  al. 


and  that  the  books,  accounts,  vouchers  and  securities  of  the  part- 
nership may  be  placed  in  the  hands  of  a  master,  so  that  the  com- 
plainant may  have  access  to  them.  It  also  prays  an  injunction 
against  Johnson  to  restrain  him  from  collecting  or  receiving  any 
of  the  partnership  debts,  or  from  selling  any  of  the  partnership 
property ;  and  also  an  injunction  restraining  the  plaintiffs  in  said 
executions,  and  also  the  sheriff  of  the  county  of  Essex,  to  whom 
the  same  were  directed  and  delivered,  from  proceeding  to  a  sale 
of  the  partnership  property  so  levid  on  as  aforesaid,  until  the 
further  order  of  the  court.  To  this  bill  the  usual  affidavit  was 
annexed. 

On  the  filing  of  the  bill,  an  injunction  was  issued  as  prayed 
for,  and  an  order  made,  appointing  receivers  of  the  partnership 
property,  and  also  appointing  one  of  the  masters  of  the  court  to 
receive  and  take  charge  of  the  books,  accounts,  vouchers  and 
securities  of  the  said  partnership,  the  parties  to  have  access  to 
the  same  when  necessary. 

On  the  5th  of  June,  1838,  Robert  C.  Stoutenburgh,  Elihu 
Day  and  Alvan  Hedden,  filed  their  answer  to  the  bill  of  com- 
r^int ;  to  which  exceptions  having  been  filed,  the  said  defend- 
ants, on  the  29th  of  August,  1838,  filed  a  further  answer.  By 
their  answer  they  state,  that  they  lived  in  Newark — had  repeat- 
edly transacted  business  with  "William  Johnson,  junior,  in  his  in- 
dividual name :  that  having  become  indebted  to  them,  lie  con- 
fessed judgments  in  their  favor,  as  is  charged  in  the  bill  of  com- 
plaint ;  upon  which  judgments  executions  were  issued  and  leviea 
rja.de  upon  the  property  in  Johnson's  possession.  They  deny  all 
knowledge  of  the  partnership,  and  state  that  they  never  heard 
of  its  existence  until  after  the  filing  of  complainant's  bill. 

AVilliam  Johnson,  junior,  also  filed  his  several  answer  to  tho 
bill.  No  answer  was  filed  by  John  E.  Keen  and  Abraham 
Coatcs,  the  other  defendants. 

The  cause  came  on  for  hearing  at  January  term,  1839,  upon 
the  application  of  Robert  C.  Stoutenburgh,  Elihu  Day  and  Al- 
van Hedden,  to  dissolve  the  injunction  issued  in  the  cause,  and 
to  vacate  the  order  appointing  receivers,  so  far  as  respects  the  said 


APRIL  TERM,  1839.  1C7 


Cammock  v.  Johnson  et  ul. 


Stoutenburgh,  Day  and  Hedden.    The  motion  to  dissolve  was 
heard  upon  the  bill  and  answer. 

A.  Wfdtefiead  and  I.  II.  Williamson,  for  defendants. 
O.  S.  Hoisted  and  Elias  Vanarsdale,  for  complainant. 

THE  CHANCELLOR.  This  is  a  motion  in  behalf  of  the  de- 
fendants, Stoutenbnrgh,  Day  and  Co.,  to  dissolve  the  in  junction 
heretofore  issued  in  this  cause,  and  to  vacate  the  order  appointing 
receivers.  The  questions  which  arise  on  this  motion  are  import- 
ant in  themselves,  and  must  have,  in  any  result  to  which  I  may 
come,  a  strong  bearing  on  the  rights  of  the  parties ;  I  feel  it  my 
duty,  therefore,  to  state  fully  the  grounds  of  my  opinion. 

The  injunction  was  granted  upon  the  case  made  by  the  bill 
alone.  But  that,  the  complainant  and  William  Johnson,  junior, 
were  stated  to  be  partners  in  the  manufacture  of  leather,  and  co 
have  been  so  from  some  time  in  May,  1833  :  that  they  were  to 
share  equally  in  the  profits  and  losses  of  the  business,  and  had 
incurred  a  large  amount  of  debts,  which  were  entitled  to  be  iirst 
paid  out  of  the  partnership  property.  The  bill  further  charged, 
that  one  of  the  partners,  William  Johnson,  junior,  had  become 
largely  indebted  on  his  private  account;  had  possessed  himself 
wrongf  ully  of  the  partnership  effects,  and  in  his  own  name  con- 
fessed judgments  for  a  large  amount  to  certain  persons,  r.nd 
among  the  rest  to  Stoutenburgh  Day,  and  Co.;  upon  which  ex- 
ecutions were  issued,  and  the  property  of  the  h'rm  advertised  by 
the  sheriff  for  sale  within  two  days  from  the  time  of  presenting 
the  bUl ;  and  that  a  large  proportion  of  said  judgments  were  for 
the  individual  debts  of  Johnson,  and  in  no  way  connected  with 
the  said  partnership. 

Upon  this  outline  of  facts,  verified  by  the  complainant,  the 
injunction  was  issued,  and  as  I  still  think,  properly.  The  case 
presented  a  strong  claim  for  the  interference  of  the  court.  Tho 
partnership  was  supposed  to  be  one  of  an  ordinary  character ;  and 
the  rule  is  well  settled  that  in  equity  the  creditors  of  a  partner. 


168  CASES  IN  CHANCERY, 


Cammack  v.  Johnson  et  al. 


ship  have  a  right  to  be  paid  first  out  of  partnership  property,  in 
preference  to  those  of  the  individual  partners.  The  complainant 
also  had  a  clear  interest  in  insisting  that  the  property  of  the  firm 
should  not  go  to  discharge  the  debts  of  his  copartner,  until  all 
the  demands  against  the  firm  were  satisfied.  After  the  debts  of  a. 
firm  were  satisfied,  the  residue  of  the  property  belongs  to  the  indi- 
vidual partners,  and  can  then,  and  then  only,  be  applied  to  the 
payment  of  their  individual  creditors.  This  principle  will  be 
found  fully  recognized  in  the  case  of  Tat/lor  v.  Fields,  4  Ves. 
396;  and  in  the  case  of  JDeveau  v.  Fowler,  2  Paige,  402.  A 
question  has  indeed  been  made,  whether  an  injunction  ought  to 
issue  to  stay  an  execution  at  law  against  one  of  the  partners  from 
Belling  the  partnership  property,  for  the  reason,  that  such  sale 
could  only  reach  the  interest  of  such  partner,  which  must  of 
course  be  in  the  residue,  after  discharging  all  the  partnership 
debts :  in  other  words,  because  the  sale  could  only  place  the 
purchaser,  as  to  the  property,  in  the  same  situation  that  the  de- 
fendant in  the  execution  was  prior  to  such  sale.  Chancellor 
Kent,  in  the  case  of  Moody  v.  A.  and  II.  Payne,  2  Johns.  Ch. 
Hep.  548,  refused  to  interfere  in  such  case ;  but  in  1  Story's 
fyuity,  628,  it  will  be  seen,  that  learned  author  reviews  this 
decision,  and  takes  the  opposite  side  of  the  question,  insisting 
that  it  is  a  proper  case  for  injunction.  His  reasoning  is  very 
strong,  especially  as  applicable  to  personal  property.  lie  says, 
"  It  may  be  extremely  difficult  to  follow  the  property  into  the 
hands  of  various  vendees ;  and  their  lien  may  perhaps  be  dis- 
placed, or  other  equities  ariso  by  intermediate  bona  fide  sales  of 
the  property  by  the  vendees,  or  purchasers  without  notice ;  and 
the  partners  may  have  to  sustain  all  the  chances  of  any  super- 
vening insolvencies  of  the  immediate  vendees."  For  these  rea- 
sons, to  prevent  multiplicity  of  suits  and  irreparable  mischiefs, 
he  js  in  favor  of  restraining  the  sale  altogether.  "When  such 
men  differ,  it  is  indeed  difficult  to  decide;  though  I  confess  the 
reasoning  of  justice  Story,  as  applied  to  the  case  of  chattels,  ap- 
pears to  mo  extremely  forcible  and  just.  In  the  very  case  now 
under  consideration,  to  allow  the  sheriff  to  go  on  and  sell  every 


APEIL  TERM,  1838.  1C9 


Cammack  v.  Johnson  et  cl. 


hide  of  leather  to  different  persons,  would  render  it  utterly  im- 
possible for  the  partnership  creditors  to  get  at  their  rights.  But 
this  question  need  not  he  decided  here,  as  the  defendants  pro- 
ceed on  different  grounds,  and  claim  the  right  of  selling  this 
property  freed  from  the  partnership  debts. 

Stouienburgh,  Day  and  Co.  have  answered  the  bill,  and  by 
that  answer  they  state,  that  although  they  reside  and  carry  on 
business  in  the  same  place,  and  have  had  for  many  years  past 
considerable  business  with  "\Villiain  Jolmson,  junior,  they  never 
knew  or  heard  of  the  said  partnership  until  the  complainant  filed 
his  bill  in  this  cause.  They  state  many  matters,  but  those  which 
are  important  are,  that  the  said  partnership  was  not  public  or 
known ;  that  the  complainant  kept  it  a  secret ;  and  particular- 
ly, that  the  business  was  conducted  in  the  individual  name  of 

William  Johnson,  junior, 

This  places  the  whole  case  in  a  new  aspect ;  and  it  will  be 
seen  that,  upon  well  settled  principles  of  law,  a  very  different 
rule  obtains  in  silent  from  that  in  open  partnerships  :  I  mean  as 
respects  the  public.  If  men  carry  on  business  without  any  con- 
cealment as  partners,  they  are  dealt  with  accordingly,  and  cred- 
itoi-s  understand  to  whom  and  upon  what  property  they  give 
tlifir  credit ;  but  to  allow  a  silent,  unknown  partner,  the  right  of 
rising  up  at  any  tune  and  embarrassing  the  claims  of  others, 
would  work  manifest  injustice.  There  would  be  no  safety  in 
business  if  this  might  be  done.  After  dealing  with  a  man  under 
the  idea  that  he  was  Tarrying  on  business  on  his  own  account, 
and  prosecuting  demands  to  judgment  and  execution,  if  a  secret 
partner  may  then,  for  the  first,  announce  the  fact  of  his  being  a 
member  of  the  firm,  and  claim  all  the  rights  of  an  open  partner, 
there  would  be  no  security  in  trade.  At  law  the-visible  partner, 
if  sued  alone,  cannot  plead  in  abatement  that  he  has  a  dormant 
partner ;  and  a  creditor  may,  at  his  election,  sue  cither  the  visi- 
ble partner  alone,  or  join  any  latent  partner  ho  may  discover. 
Iloflfjkinson  exparte^  19  Vesey,  294;  Norfolk  cxparte,  19 

i    «-y,  436 ;   De    Mautort  v.   Saunders,   20  English   Com-. 
Law,    410;  Hamper  expatfe,   17    Vesey,  410;    Latjton  e» 


170  CASES  IX  CIIAXCEKY, 


Cammack  v.  Johnson  et  al. 


parte,  6  Vesey,  438 ;  Mullet  v.  Hook,  22  English  Com.  Law, 
259. 

The  case  of  Lord  v.  Baldwin,  cited  on  the  argument  from 
C  Pickering's  Rep.  348,  reported  in  7  American  Com.  Law 
Rep.  235,  is  a  very  strong  case  on  this  whole  subject,  and  the 
reasoning  of  chief  justice  Parker  is  most  satisfactory.  The  pro- 
ceeding was  in  attachment,  and  therefore  reached  the  property 
at  once ;  and  the  court,  although  they  fully  recognized  the  rule 
in  open  partnerships  that  the  creditors  of  the  firm  must  be  first 
paid,  denied  any  such  rule  in  the  case  of  dormant  partners. 
The  true  principle  is,  in.  my  opinion,  laid  down  in  that  case ; 
that  those  funds  shall  be  liable  on  which  the  credit  is  given.  In 
an  open  firm,  the  credit  is  given  to  the  firm  and  to  the  goods 
they  are  possessed  of,  and  a  partnership  creditor  shall  be  first 
paid  out  of  them ;  but  if  the  partner  be  unknown,  the  credit  is 
given  to  the  visible  partner  only,  and  the  goods  in  his  possession 
are  supposed  to  be  his  own,  and  in  such  case  the  discovery  of 
such  latent  partner  cannot  give  any  preference  to  a  partnership 
creditor.  As  between  the  partners  themselves,  I  see  no  reason 
to  make  any  distinction  in  their  rights,  whether  any  arc  dormant 
or  not ;  but  as  to  the  public,  it  is  not  only  highly  proper,  but 
necessary  to  prevent  injustice  towards  creditors,  that  this  differ- 
ence should  be  observed.  The  case  of  French  v.  Chase  in 
C  Greerileaf,  ICG,  is  still  stronger.  It  was  there  held,  that  the 
prior  right  of  a  partnership  creditor  to  be  paid  out  of  the  common 
property  in  preference  to  a  separate  creditor  of  either  of  the  part- 
ners, does  not  exist  in  the  case  of  a  dormant  partnership.  Upon 
a  careful  examination  of  the  cases  on  this  subject,  as  well  as 
from  their  reason  and  propriety,  I  am  clearly  of  opinion  that  the 
execution  creditor  has  his  remedy  complete  against  all  the  effects 
of  the  visible  partner,  and  all  the  effects  which  belong  to  him 
and  his  dormant  partner  as  partners,  and  that  it  makes  no  differ- 
ence whether  the  debt  was  contracted  by  the  debtor  on  partner- 
ship account  or  on  his  individual  account. 

The  cases  cited  arose  on  disputes  between  creditors ;  but  in  tho 
case  before  me,  the  complainant,  who  asks  the  aid  of  the  court, 


APRIL  TERM,  1839.  171 


Cammack  v.  Johnson  et  al. 


i ;  himself  the  dormant  partner ;  and  surely,  if  creditors  cannot 
claim  the  appropriation  of  partnership  effects  for  payment  of  their 
demands  first,  there  is  less  reason  for  doing  so  at  tho  instance  of 
the  silent  and  unknown  partner.  The  step  is  voluntary  with 
him.  1I«  choose  to  place  himself  in  this  position,  and  it  is  far 
more  just  that  he  should  suffer  by  it  (however  much  that  is  to  be 
regretted)  than  innocent  traders  who  have  beed  kept  in  the  dark 
as  to  the  true  condition  of  things  by  his  act.  Upon  the  creditors 
of  the  firm,  there  is  no  other  hardship  than  that  which  occurs 
continually  when  one  creditor  is  preferred  by  his  debtor  over  an- 
other. The  law  authorizes  this  preference  if  obtained  by  way  of 
judgment,  and  it  is  practiced  every  day.  Had  there  been  no 
partnership,  they  must  have  been  postponed  in  their  demands  by 
je  judgments  and  executions;  and  there  is  no  good  reason 
v.-hy  tho  discovery  of  a  partner  at  this  late  day,  should,  in  jus- 
tice and  eqiuty,  change  the  rights  or  remedies  of  any  of  tho 
creditors. 

Lut  it  is  said  by  the  counsel  of  the  complainant,  that  the  court 
cannot  rely  on  the  defendants'  answer  to  make  out  this  partner- 
ship as  dormant  and  unknown  to  them ;  that  this  is  not  matter 
responsive  to  the  bill,  but  new,  and  must  be  proved.  I  am  refer- 
red on  this  point  to  the  case  of  Rodgers  and  others  v.  Hodgcrs 
and  otJiers,  in  1  Paige,  426.  There  the  fraud  on  which  the 
equity  rested  was  not  stated  to  be  in  the  knowledge  of  the  defen- 
dants ;  they  were  representatives  of  the  party  charged  with  the 
fraud,  and  they  answered  only  as  to  their  knowledge  and  belief . 
In  this  case  the  matters  stated  in  the  answer  arc  within  tho 
knowledge  of  the  defendants.  The  answer  may  indeed  bo  said 
to  be  a  response  to  the  bill.  The  existence  of  the  partnership  ia 
charged  in  the  bill,  but  of  what  character  is  not  stated,  nor  even 
that  any  publicity  was  ever  given  to  it.  The  answer  meets  this 
charge,  by  declaring  that  tho  first  they  ever  heard  of  any  partner- 
ship was  by  tho  bill,  and  by  denying  that  they  had  themselves 
any  knowledge  of  it  whatever.  There  is  a  very  important  fact 
stated  in  the  bill  and  repeated  in  the  answer,  that  tho  business 
was  conducted  in  the  name  of  William  Johnson,  Junior,  one 


172  CASES  IN  CHANCERY, 

Cammack  v.  Johnson  et  al. 

of  the  partners.  In  one  case,  cited  from  7  American  Com. 
Law  Rep.  234,  it  was  held  that  every  partner  was  to .  be  con- 
sidered as  dormant,  unless  his  name  was  mentioned  in  the  firm 
or  embraced  under  general  terms  as  the  name  of  one  of  the  firm. 
T^ithout  going  the  length  of  that  case,  the  fact  that  the  business 
was  conducted  in  the  name  of  one  of  the  partners,  without  even 
the  addition  of  the  word  "  company,"  is  a  strong  corroboration  of 
the  facts  stated  in  the  answer,  and  was  in  an  especial  manner 
calculated  to  blind  tho  eyes  of  the  public. 

This  judgment  was  obtained  in  February,  1838,  and  the  de- 
fendants' amended  answer  was  filed  in  August  last,  since  which 
time  no  depositions  have  been  taken,  or  any  steps  to  bring  the 
cause  to  a  hearing.  The  power  of  dissolving  injunctions,  as  well 
as  that  of  granting  them,  must  rest,  necessarily,  much  in  tho 
discretion  of  the  court,  and  should  be  exercised  in  such  way  as 
to  prevent  the  restraints  by  injunction  from  working  unnecessa- 
ry delay  and  injustice  to  parties.  Entertaining  no  doubt,  from 
the  whole  case,  of  the  truth  of  the  answer  in  this  important  par- 
ticular, and  after  carefully  examining  the  charges  made  in  the 
bill,  and  believing  the  law  of  the  case  to  be  with  the  defendants, 
I  cannot  think  it  right  to  continue  this  injunction  until  the  ac- 
counts between  these  partners  are  settled.  They  have  acquired 
a  preference  by  their  executions  at  law,  which,  after  a  full  hear- 
ing, I  believe  them  entitled  to.  The  answer  meets  the  equity  of 
the  bill.  In  addition,  the  answer  of  William  Johnson,  junior, 
has  been  read  by  both  the  parties  on  the  argument,  in  which  ho 
states,  that  the  partnership  was  designedly  carried  on  in  his 
name  to  prevent  tho  public  from  knowing  that  the  complainant 
had  any  interest  in  it ;  and  that  the  connection  was  a  matter 
entirely  between  themselves,  and1  unknown,  as  he  believes,  to 
any  of  the  dealers  and  creditors  of  the  firm. 

An  exception  was  taken  on  tho  argument  to  the  judgments  oi 
Stoutenburgh,  Day  and  Co.  They  are  not  charged  in  tho  bill 
to  bo  fraudulent,  nor  is  there  any  thing  in  the  case  to  show  them 
to  be  so.  How  far  they  arc  liable  to  exceptions  from  irregularity, 
it  is  not  tho  province  of  this  court  to  decide.  If  any  objection 


APRIL  TERM,  1839.  1T3 


Giimmack  V.  Johnson  <  t  al. 


is  to  be  made  to  them  on  that  account,  the  court  in  which  they 
were  entered  is  the  proper  tribunal  in  which  to  seek  the  redress. 
The  injunction  must,  therefore,  be  dissolved,  so  far  as  it  stays 
proceedings  on  the  two  executions  at  law  in  favor  of  Stouten- 
burgh,  Day  and  Co.,  with  costs.  The  receivers  wiJlbe  directed 
to  restore  to  the  sheriff  the  property  taken  from  him  on  which  he 
had  levied,  upon  being  legally  discharged  and  receipted  for  tho 
same  ;  and  the  sheriff  will  restore  to  the  receivers  any  surplus 
in  his  hands,  after  satisfying  those  executions.  As  there  will,  in 
this  case,  remain  other  property  in  the  hands  of  the  receivers, 
and  they  will  have  further  duties  to  perform,  any  additional  or- 
der respecting  them  is  unnecessary.  Being  the  officers  of  tho 
court,  they  are  at  all  times  entitled  to,  and  must  receive,  its  ad- 
vice and  protection 

Injunction  dissolved. 

CITKD   in  Linford  v.  Linford,  4  Dutch.,  118. 


CHARLES  OAKLEY  v.  The  President,  Directors  and  Company 
of  the  PATEESON  BANK. 

On  a  proceeding  against  a  company,  under  the  sixth  section  of  the  act  en- 
titled "An  act  to  prevent  frauds  by  incorporated  companies,  "passed  Febru- 
ary IGth,  1829,  the  great  nnd  primary  fact  to  be  ascertained,  is  the  insol- 
vency of  ihe  company.  That  lays  nt  the  foundation  of  tho  whole procce  '- 
ing,  and  unless  satisfactorily  made  out,  the  court  has  no  right  to  inter- 
pose. 

The  provisions  of  the  seventh  section  of  the  act,  arc  not  to  be  understood  as 
restricting  the  court  to  any  particular  mode  of  proof  in  ascertaining  tho 
insolvency  of  a  bank,  but  as  superadding  certain  tests  which  shall  in  all 
cases  constitute  full  evidence  of  such  insolvency. 

A  bank  may  bo  insolvent,  without  any  of  the  events  happening  which  are 
stated  in  the  seventh  section  of  the  act;  and  although  some  of  those  marks 
of  insolvency  may  Lave  occurred,  yet  the  bank  may,  upon  further  proof,  be 
shown  to  bo  sound  and  safe. 

Tho  court  may  act  upon  tho  tests  given  in  this  section,  or  they  may  go  further 
and  look  beyond  them,  if  they  see  reason  to  do  so,  in  coming  to  a  satisfac- 
tory conclusion  as  to  the  solvency  or  insolvency  of  tho  company. 

A  bank  without  fun  Is  for  the  redemption  of  its  notes,  and  depending  on  indi- 


174  CASES  IN  CHANCERY, 

Oakley  v.  Paterson  Bank 

vidual  resources  and  exertions  to  provide  funds  for  the  redemption  of  its 
no'.es,  rather  than  upon  the  immediate  ability  of  the  institution  i-iself,  is 
insolvent  within  tha  true  intent  and  meaning  of  the  act. 

Tae  net  requires  that  the  bank  should  be  at  all  times  prepared  to  discharge  all 
demands  presented  for  payment:  and  it  can  never  be  freed  from  the  charga 
of  insolvency  upon  any  supposed  ability  of  realizing  from  its  means  enough 
to  pay  its  debts  at  a  future  day. 

The  act  entitled  "An  act  to  restrict  the  circulation  and  discounts  of  the  Pater- 
son  Bank  for  the  time  being, "  passed  February  1st,  1838,  did  not  exempt 
tl  at  bank  from  the  operation  of  the  general  act  of  February  16th,  1829. 

The  authority  of  appointing  receivers  of  an  incorporated  company,  under  the 
act  of  February  ICth,  1829  is  a  delicate  one,  and  should  be  cautiously  exer- 
cised. It  by  no  merns  follows,  that,  because  an  injunction  is  granted,  re- 
ceivers should  be  appointed. 

That  one  of  the  directors  is  indebted  to  the  bank  ;  that  he  is  security  for  hia 
son,  who  was  formerly  cashier,  and  that  he  is  using  means  to  avoid  respon- 
sibility in  that  i  espect,  and  that  there  is  division  and  discord  in  the  board  of 
directors,  affords  ns  just  ground  for  divesting  the  board  of  the  property  and 
vesting  it  in  receivers. 

In  the  appointment  of  receivers,  the  court  will  not  rest  upon  affidavits  stating, 
as  matters  of  belief,  that  great  frauds  have  been  committed  against  the  bank, 
without  stating  by  whom  committed,  or  in  what  those  frauds  consist. 

Under  the  statue,  the  complainant  may,  upon  any  new  state  of  facts,  renew 
his  application  for  the  appointment  of  receivers. 

ON  the  18th  of  Febmaiy,  1839,  Charles  Oakley  filed  his 
bill  of  complaint  against  the  President,  Directors  and  Company 
of  the  Paterson  Bank,  for  an  injunction  and  the  appointment  of 
receivers,  under  the  act,  entitled,  "An  act  to  prevent  frauds  by 
incorporated  companies,"  passed  February  16th,  1829.  The  bill, 
after  referring  to  the  act  of  incorporation,  and  the  several  other 
acts  relating  to  the  bank,  and  stating  generally  the  time  and 
mode  of  its  going  into  operation  and  transacting  its  business, 
charges  that  the  principle  part  of  the  capital  of  the  bank  had 
been  lost  by  enormous  loans  to  Benjamin  Rathbun,  of  Buffalo : 
that  about  twenty-seven  thousand  dollars  had  been  loaned  by 
L.  S.  R.,  the  late  cashier,  without  the  knowledge  of  the  board, 
to  an  agent  of  Rathbun,  which  was  to  have  been  secured  by  an 
assignment  from  Rathbun  to  certain  of  his  creditors ;  but  that  the 
claim  of  the  bank  for  that  sum  was  contested,  on  the  ground 


APRIL  TERM,  1839.  175 

Oak >y  v.  P.  terson  Hank. 

that  the  late  cashier  had  taken  usurious  interest.  That  L.  S.  R., 
tlic  lato  cashier,  had  given  bond  as  cashier  in  five  thousand  dol- 
lars, with  A.  R.,  his  father,  as  security ;  which  bond  was  in  the 
1  uuids  of  D.  K.  A.,  one  of  the  directors  of  said  bank.  That  the 
circulation  of  the  bank  had  been  reduced  to  two  thousand  five 
hundred  dollars.  That  the  bank  claims  a  large  amount  against 
said  A.  K.,  who  is  one  of  the  directors ;  and  that  said  A.  R.  is 
endeavoring  to  obtain  from  the  board  of  directors  an  order  for  the 
sale  of  all  the  claims  of  the  bank  against  Rathbun,  amounting 
to  ninety-eight  thousand  dollars,  for  the  inadequate  sum  of  two 
thousand  dollars,  in  order  that  the  said  A.  R.  may  be  relieved 
from  his  liability  as  security  on  said  bond  of  L.  C.  R.,  the  late 
cashier.  That  there  are  no  funds  in  the  bank  to  meet  the  bills 
of  the  bank.  That  on  the  18th  or  19th  of  February,  1839,  bills 
of  said  bank  were  presented  at  the  counter  of  the  bank,  to  the 
president,  who  was  acting  as  clerk,  in  the  presence  of  the  cash- 
ier, and  payment  thereof  demanded,  within  the  usual  and  proper 
hours  of  business;  and  that  payment  thereof  was  then  and 
there  refused,  the  president  answering  that  they  had  no  funds. 
That  the  bank  then  stopped  payment,  and  have  not  since  that 
time  paid  any  of  their  bills,  although  they  have  been  frequently 
presented  for  payment.  That  the  bank  has  refused  to  redeem 
the  same  in  any  way ;  and  that  there  are  no  assets  of  the  bank 
from  which  money  to  any  amount  can  be  realized,  except  from 
the  said  claims  against  Rathbun  and  A.  R.;  and  that  com- 
plainant is  a  large  stockholder.  The  bill  prays  an  injunction, 
and  the  appointment  of  receivers  for  the  purposes  specified  in  the 
act. 

All  the  material  charges  of  the  bill,  excepting  that  the  bank 
had  refused  to  redeem  its  bills  and  had  stopped  payment,  and 
that  complainant  is  a  stockholder,  arc  made  upon  the  informa- 
tion and  belief  of  the  complainant.  The  bill  is  accompanied  by 
an  affidavit  of  the  complainant  in  the  usual  form,  and  also  by 
an  affidavit  of  the  cashier  of  the  bank,  stating  that  the  bank 
had  refused  to  redeem  its  bills  when  presented  at  the  counter  and 
payment  demanded  during  the  usual  hours  of  business,  the  presi- 


17G  CASES  IN  CHANCERY, 

Oakley  v.  Paterson  Bank. 

dent  saying  they  liacl  no  funds,  and  that  the  funds  of  the  bank 
are  exhausted. 

Upon  filing  the  bill,  an  injunction  was  issued,  as  prayed  for. 
The  cause  came  on  for  hearing  on  the  14th  of  March,  on  the  ap« 
plication  for  the  appointment  of  receivers,  and  also  upon  a  mo- 
tion, on  the  part  of  the  defendants,  to  dissolve  the  injunction. 
It  appears  that  affidavits  were  taken  and  used  on  the  argument, 
but  the  affidavits  are  not  on  file,  nor  does  it  appear  whether  they 
were  taken  exparte  or  upon  notice,  or  in  pursuance  of  an  order 
of  the  chancellor.  The  opinion  was  delivered  on  the  18th  of 
March,  1839. 

A.  S.  Pennington  and  E.  Vanarsdale,  for  complainant. 
DicJcerson  and  I.  H.  Williamson,  for  defendants. 

THE  CHANCELLOR.  This  is  a  proceeding  under  the  act  en- 
titled, "  An  act  to  prevent  frauds  by  incorporated  companies," 
passed  16th  of  February,  1829. 

No  question  can  be  raised  as  to  the  general  powers  of  the  court 
to  interfere  with  corporations,  for  the  whole  structure  of  the  bill 
confines  it  to  a  case  under  the  statute,  and  the  jurisdiction  of  the 
court  must,  therefore,  be  derived  from  that  source  alone. 

The  sixth  section  of  the  said  act  authorizes  the  chancellor, 
whenever  any  incorporated  company  shall  bec'ome  insolvent,  up- 
on the  application  of  either  creditor  or  stockholder,  to  restrain 
by  injunction  such  company  from  the  further  exercise  of  any  of 
the  privileges  or  franchises  granted  by  its  charter.  The  great 
and  primary  fact  to  be  ascertained,  is  the  insolvency  of  the  com- 
pany. That  lays  at  the  foundation  of  the  whole  proceeding, 
and  unless  satisfactorily  made  out,  the  court  has  no  right  to  in- 
terpose. I  do  not  understand  the  provisions  of  the  seventh  section 
of  the  act,  as  restricting  the  court  to  any  particular  mode  of  proof, 
in  ascertaining  this  important  fact  in  the  case  of  a  bank,  but  as 
snpcradding  certain  tests,  which  shall  in  all  cases  constitute  full 
evidence  of  such  insolvency.  It  was  seen  that  in  the  case  of  » 


APRIL  TERM,  1839.  177 

O.ikl'  y  v.  Patersou  Bank. 

bank,  it  might  bo  very  difficult  to  obtain  such  a  knowledge  of  its 
afrairs  us  to  enable  the  court  to  say  whether  it  was  actually  insol- 
vent or  not ;  it  was,  therefore,  thought  expedient  cxplicity  to 
state  what  Icind  of  proof  should  be  deemed  sufficient  for  that 
purpose.  » 

A  bank  may  be  insolvent  without  any  of  the  events  happening 
which  arc  stated  in  the  seventh  section ;  and,  although  sonio  of 
those  murks  of  insolvency  may  have  occurred,  yet  the  bank  may, 
upon  further  proof,  bo  shown  to  be  sound  and  safe,  Tho  court 
may  net  npon  the  tests  given  in  this  section,  or  they  may  go  fur- 
ther and  look  beyond  them,  if  they  see  reason  to  do  so,  in  coming 
to  a  satisfactory  conclusion  as  to  the  solvency  or  insolvency  of  the 
company. 

In  the  present  case,  there  is  abundant  reason  for  declaring  this 
company  insolvent  within  the  meaning  of  this  act,  as  well  upon 
the  tests  given  in  the  seventh  section,  as  upon  the  whole  case  dis- 
closed by  the  evidence.  By  the  oath  of  the  cashier  affixed  to  the 
bill,  ho  declares  the  funds  of  the  bank  to  be  exhausted,  and  tint 
they  have  had  no  funds  since  the  19th  of  February  last.  The 
bank  has  refused  recently,  in  two  or  three  instances,  to  pay  its 
notes  when  presented.  It  is  said,  however,  that  as  one  of  the  di- 
rectors had  promised  to  furnish  private  funds  f  or  the  redemption 
of  the  notes  of  the  bank,  some  others  of  the  directors,  to  try 
whether  he  had  done. so,  embraced  an  opportunity  when  ho  was 
in  the  "bank  to  have  these  bill  presented  by  a  third  person.  This 
being  a  stratagem  to  ascertain  another  fact,  might  with  propriety 
be  disregarded,  as  not  being  such  a  presentation  and  refusal  as  is 
contemplated  by  the  act.  But  going  behind  the  form  of  the 
transaction,  it  discloses  a  state  of  things  wliich  proves  beyond  all 
doubt  that  the  bank  was  without  funds,  and  depending  entirely  on 
the  private  funds  of  the  directors.  It  is  plain  that  the  directors 
have  been  in  the  habit  of  depending  more  on  their  individual 
resources  and  exertions  to  provide  funds  for  the  redemption  of 
the  notes  of  the  bank,  than  upon  the  immediate  ability  of  the 
institution  itself.  But  for  these  exertions,  it  must  have  long  since 
ceased  to  pay,  and  been  put  an  end  to.  That  a  bank  thus  cir- 
24 


173  CASES  IK  CHANCERY, 

Oakley  v.  Paterson  Bank. 

cmnctanced  is  insolvent  within  the  true  intent  and  meaning  of 
the  act,  I  entertain  no  doubt.  Every  provision  in  the  act  calls 
for  the  bank  being  at  all  times  prepared  to  discharge  all  demands 
presented  for  payment ;  and  it  can  never  be  freed  from  the 
charge  of  insolvency  upon  any  supposed  ability  of  realizing 
from  its  means  enough  to  pay  its  debts  at  a  future  day. 

It  is  insisted,  however,  in  this  case,  that  by  the  act  of  the 
let  of  February,  1838,  this  particular  bank  was  placed  in  a  dif- 
ferent position  from  other  institutions,  and  exempt  from  the  ope- 
ration pf  the  act  on  which  this  suit  is  founded.  I  do  not  so  con- 
cider  it.  There  is  nothing  in  the  title  or  preamble,  or  in  the 
enacting  clause,  that  can  lead  to  such  a  conclusion.  The  re- 
turns made  to  the  governor  by  the  different  banks  in  this  state, 
under  a  particular  law,  at  a  time  of  great  depression  and  alarm 
in  the  money  market,  opened  to  the  public  the  true  condition  of 
the  banks,  and  among  others  of  the  Paterson  bank.  It  was 
Been  that  their  funds  were  locked  up.  And  to  avoid  embar- 
rassment to  the  public,  the  sole  design  of  the  act  was  to  prohibit 
further  issues  and  discounts.  So  far  as  it  went,  it  was  a  partial 
injunction  by  legislative  enactment,  and  can  never,  by  any 
forced  construction,  have  been  intended  to  prohibit  the  chancellor 
from  going  further,  in  case  the  company  come  within  the  scope 
of  the  former  acts  regulating  banking  companies.  It  would 
have  been  strange  indeed,  if  the  very  embarrassments  of  a  com- 
pany, as  shown  by  the  exhibit  they  made,  should  have  induced 
the  legislature  to  exempt  them,  by  a  particular  act,  from  the  op- 
eration of  a  law,  the  object  of  which  is  to  guard  the  public 
against  injuries  arising  from  their  insolvency. 

This  company  must,  therefore,  stand  in  my  judgment,  as  all 
other  companies,  no  way  relieved  by  the  act  of  1838  from  the 
operation  of  the  general  act  under  which  this  suit  was  instituted ; 
and,  by  the  evidence,  it  is  shown  to  be  insolvent  within  the 
true  intent  and  meaning  of  that  act. 

I  am  now  moved,  under  the  eighth  section  of  the  aforesaid 
act,  to  appoint  receivers  to  take  charge  of  the  effects  and  wind 
up  the  concerns  of  this  bank.  This  I  am  authorized  to  do,  "  if 


APRIL  TERM,  1830.  179 

Oakley  v.  Patersnn  Bank. 

f  ho  circumstances  of  the  case  and  the  ends  of  justice  require  it* 
This  authority  is  a  delicate  one  to  be  exercised,  and  I  thought 
proper,  before  ctoing  eo,  to  hear  counsel,  and  to  be  possessed  of 
tho  whole  case.  The  effect  of  appointing  receivers  is  to  tako  the 
property  out  of  the  hands  and  control  of  those  persons  to  whom 
the  ctockholders  (and  in  the  present  situation  of  the  bank  they 
ere  the  persona  principally  interested)  have  confided  it.  After 
the  best  reflection  in  my  power  to  bestow  on  tho  subject,  I  have 
come  to  the  conclusion  that  receivers  ought  not  to  be  appointed. 
It  by  no  means  follows,  that,  because  an  injunction  is  granted 
receivers  should  be  appointed.  They  are  independent  questions. 
Circumstances  may  call  for  the  suspension  of  tho  operations  and 
business  of  a  bank,  while  the  directors  then  in  charge  of  its  affairs 
may  be  in  no  respect  implicated,  and  they  may  be  of  all  others 
the  best  calculated  to  wind  up  its  concerns,  and  that  with  the 
least  expense  to  the  parties  in  interest. 

There  is  one  redeeming  feature  in  tho  case  of  this  bank, 
vrhich  has  made  a  strong  impression  on  my  mind  as  to  the  con- 
clusion I  ought  to  como  to.  When  Rathbun  failed,  in  August, 
183C,  he  was  indebted  to  this  bank  in  ninety-eight  thousand  dol- 
lars, and  the  circulation  of  tho  bank  was  one  hundred  and  two 
thousand  nine  hundred  and  eighty-three  dollars.  The  directors 
then  went  to  work  to  pay  off  its  debts ;  and  in  November,  1837, 
reduced  the  amount  of  its  circulation  to  twelve  thousand  four 
hundred  and  seventy-four  dollars.  This  amount  was  then  in- 
creased, as  is  alleged,  under  the  influence  of  the  complainant, 
to  forty-six  thousand  seven  hundred  and  ninety-three  dollars. 
Since  that  time,  the  directors  have  gone  on  again  and  reduced 
the  circulation,  until  it  is  admitted  on  all  hands  to  amount  at  this 
time  only  to  about  two  thouscnd  five  hundred  dollars.  The 
complainant  has  principally  paid  off  his  debt,  which  was  large, 
Rial  I  find  no  charge  any  where  made  that  tho  directors  have 
misapplied  any  of  the  funds.  They  appear,  on  the  contrary, 
from  the  results,  to  have  assiduously  exerted  themselves  to  pay 
off  the  debts  of  the  bank.  That  the  exorbitant  loans  to  Hath- 
bun  were  improvident,  and  brought  this  bank  into  great  embar- 


180  CASES  IN  CHANCERY, 

Oakley  v.  Paterson  Bank. 

rassment,  cannot  be  doubted ;  but  in  doing  justice  to  all  parties,  I 
feel  bound  to  declare  my  conviction,  that  the  conduct  of  the  di- 
rectors since  that  event,  so  far  as  disclosed  by  the  evidence,  shows 
i  meritorious  determination  to  maintain  the  credit  of  the  bank  at 
all  hazards.  Do  the  ends  of  justice,  under  such  circumstances, 
require,  cither  for  the  interest  of  the  creditors  or  stockholders, 
that  they  should  be  displaced  and  other  persons  substituted  in 
their  stead  ?  Could  any  men  hare  gone  further  in  liquidating 
the  demands  against  the  bank  ?  Have  they  done  else  with  the 
funds  than  apply  them  in  the  proper  manner  to  pay  the  debts  ? 
Could  they  have  done  more  to  realize  the  assets  of  the  institu- 
tion ?  Judging  from  the  evidence,  I  am  bound  to  answer  all 
these  questions  in  the  negative. 

But  it  is  said  that  Abraham  Reynolds,  one  of  the  directors,  is 
indebted  to  this  bank  ;  that  he  is  security  for  his  son,  who  was 
formerly  cashier,  and  that  he  is  using  means  to  avoid  his  re- 
sponsibility in  that  respect.  This  he  denies  in  his  affidavit.  At 
most  he  is  but  one  of  the  directors  ;  and  it  would  be  going  a 
great  way  without  evidence  to  suppose,  that  a  majority  of  the 
directors,  and  those  largely  interested  in  the  stock,  were  uniting 
with  him  in  a  plan  to  defraud  the  company,  and  that,  too, 
against  their  interests.  It  is  also  said,  and  truly,  that  there 
is  division  and  discord  in  the  board  of  directors.  Is  this  any  just 
ground  for  divesting  the  whole  board  of  the  property  ?  How 
often,  if  such  ground  was  sustained,  would  the  interference 
of  the  court  bo  sought  ?  The  majority,  in  all  such  cases,  must 
rule.  Every  man  who  takes  stock  in  a  company,  agrees  that 
such  should  be  the  result.  I  cannot,  therefore,  make  this  alone  a 
foundation  for  interfering. 

In  some  of  the  affidavits,  it  is  stated,  as  the  belief  of  the  per- 
sons making  them,  that  great  frauds  have  been  committed  against 
the  bank ;  but  by  whom  committed,  or  in  what  these  frauds  con- 
sist, is  not  stated.  This  is  too  general  for  the  court  to  rest  upon. 

There  is  only  one  other  matter  to  which  I  will  advert,  n ;  a 
reason  iirged  for  appointing  receivers;  and  that  is,  the  proposed 
plan  for  selling  out  the  whole  claim  against  Rathbun  for  two 


APRIL  TERM,  1839.  181 

Oakley  v.  P.it.rson  B  nk. 

thousand  dollars.  This  may  or  may  not  be  a  wise  step,  accord- 
ing to  circumstances,  and  of  which  I  have  no  materials  up- 
on which  to  form  a  judgment.  There  is  a  fact,  however,  con- 
nected with  this  matter,  worthy  of  being  stated,  viz ;  that  while 
the  measure  has  been  broached  at  the  board,  it  has  not  yet  been 
adopted,  and  the  stockholders  have  been  consulted  on  the  sub- 
ject by  order  of  the  board.  This  does  not,  to  my  mind,  look 
like  a  designed  fraud. 

Upon  the  whole  case,  I  am  constrained  to  think,  that  in  the 
exercise  of  that  discretion  with  which  the  act  in  question  has  in- 
vested me,  this  case  does  not  call  for  the  appointment  of  receiv- 
ers upon  the  facts  as  at  present  disclosed  before  the  court,  and  I 
shall  accordingly  decline  making  such  appointment.  As  to  the 
injunction,  that  must,  as  a  matter  of  course,  be  so  modified  afl 
to  authorize  the  receipt  by  the  directors  of  the  dues  of  the  bank, 
and  the  payment  by  them  of  its  debts.  As  to  any  further  modi- 
fication, it  must  be  upon  notice.  It  will,  under  the  statute,  be 
in  the  power  of  the  complainant  upon  any  new  state  of  facts,  to 
apply  again  for  the  appointment  of  receivers,  which  I  hope  the 
prudence  and  correct  conduct  of  the' directors  will  give  no  just 
occasion  for.  The  question  of  costs  is  reserved. 
Order  accordingly. 

CITED  in  Goodheart  v.  Har.  Mng.  Co.  4  Sal.  Ch.  77 ;  Bawmley  v. 
Trenton  Mut.  L.  and  F.  Int.  Co.  1  Stock  850 ;  Niehol  v.  Perry  Pat. 
Arm*.  Co.,  8  Stoclc  126. 


CASES 

ADJUDGED  TT»  . 

THE  COURT  OF  CHANCERY 

OF  THE  S1AIE  OF  NEW-JERSEY. 
JULY    TERM,     1839. 


MART  MEKWIN  and  others  v.  ISAAC  SMITH,  Sheriff,  and 
others. 

T  e  general  rule  is,  that  when  nn  in  junction  has  been  obtained  upon  the  com- 
plaint's affidavit  alone,  and  a  motion  is  made  by  the  defendant,  upon  filing 
bis  answer,  lo  dissolve  the  injunction,  affidavits  cannot  be  read  upon  the  ar- 
gument of  the  motion  eiihfr  in  support  of  the  bill  or  a-iswcr. 

The  rule  artm'ts  of  exceptions.  In  cases  of  waste,  affidavits  are  adm  ssible  ia 
support  of  the  bill,  to  prove  acts  of  waste. 

IJut  affidavits  will  not  be  admitted  in  support  of  allegations  contained  in  tbo 
bill,  and  not  expressly  denied  by  ho  answer.  The  practice  of  this  court  is 
ia  conformity  with  the  rule  adopted  by  the  supreme  court  of  the  United 
States,  viz  :  that  the  allegations  of  the  b',11  will  be  taken  as  true  when  th^y 
are  not  met  and  denied  by  the  answer  ;  and  if  the  answer  does  not  full/ 
meet  thj  case  disclosed  by  the  bill,  the  injunction  will  be  sustained. 

Where  new  matter  is  contained  in  the  answer,  not  respons've  to  the  bill,  which 
is  relied  upon  as  a  ground  for  setting  aside  the  injunction,  the  complainant 
may  read  affi-lavits  in  contradiction  of  such  new  matter. 

On  tho  hearing  of  a  motion  to  dissolve  an  injunction,  upon  the  defendant's 
answer  to  the  bill,  tho  charges  in  the  bill,  uuless  met  by  the  answer,  are  to 
bo  taken  as  true,  and  the  allegations  in  tho  answer  are  entitled  to  tho 
same  credit. 

A  technical  denial  of  tho  complainant's  bill  will  not  in  all  cases  dissolve  the 


JULY  TERM,  1809. 


Merwin  et  al.  v.  Smith  ct  al. 


injunction:  that  must  rest  in  the  soun  1  discretion  of  the-  court,  and  depend 
on  tho  peculiar  character  and  circumstances  of  each  case. 

Judgment  and  execution  creditors  of  a  defendant  m  execution,  whose  pro- 
perly has  been  Bold  by  tho  sheriff,  slanJ  in  a  position  which  fully  entitles 
them  to  bo  heard  upon  an  application  for  relief  against  tho  sheriff's  salo  ; 
and  if  tho  sale  is  in  any  respect  illegal,  it  may  be  set  asido  at  their  in- 
stance. 

Whcro  tho  sheriff's  advertisement,  after  specifying  sundry  parcels  of  land  to 
bo  Bold  by  do  shcr  ff,  adds,  "together  with  all  his  (the  defendant's)  other 
real  estate  in  tho  county  cf  Atlantic,  of  whica  a  more  particular  description 
will  bo  given  oa  tho  day  of  sale,"  it  seems  that  tho  advertisement  is  defect- 
ive, r.n-1  iasnQcient  to  authorize  tho  sale  of  any  lands  except  those  specified 
in  tho  advertisement 

Somo  description,  by  which  the  property  may  be  known,  though  imperfect  ia 
itse'-f,  is  necessary. 

The  discretion  confided  to  the  sheriff  as  a  public  officer,  in  selling  property, 
mu^t  not  be  unnecessarily  or  hastily  i-tcifered  \vith,  nor  w.thout  tlio  charge.! 
(•gainst  Lis  conduct)  being  sustained  by  indisputable  evidence.  A  sale  by 
a  sheriff,  upon  execution,  in  one  parcel,  of  a  large  quantity  of  tho  def:nd- 
ant'o  properly,  which  is  readily  susceptible  of  division,  can  never  be  justified 
upou  any  other  ground  than  as  being  tho  best  mode  for  making  it  bring  the 
mo  t  money. 

A  properly  may  bo  FO  circumstanced — one  part  so  dependent  0:1  the  other — as 
to  require  a  calo  in  large  parcels;  but  tho  goncr.il  rulo  is,  that  it  must  b» 
sold  i:i  different  parcels  if  plainly  divisible. 

A  sheriff  cannot  require  security  of  a  duly  authorized  agent  of  the  plaintiff 
in  execution,  for  tho  performance  cfhis  contract,  nor  car.  ho  rcfuso  tho 
bid  of  such  agent  for  want  of  the  required  security .. 

The  exercise  of  tho  sheriff's  discretion  must  be  a  legal  one,  and  so  controlled 
as  to  work  no  injustice  or  oppression. 

A  sheriff  may  refuse  to  take  the  bid  of  «m  irresponsible  man,  or  o"  any  ore 

.  when  ho  ia  well  satisfied  that  the  sale  could  only  be  embarrassed  by 
accepting  it. 

Tins  was  an  injunction  bill,  tiled  on  the  10th  of  January, 
1839,  by  Mary  Merwin  and  James  B.  Longacre,  of  Philadel- 
phia, and  Joseph  Moser  and  Andrew  Merwin,  of  Brooklyn,  in 
tlio  state  of  New- York,  against  the  sheriff  of  the  county  of  At- 
1  intic,  and  seven  others,  purchasers  of  real  estate  at  a  sale  mado 
by  the  said  sheriff  under  executions  against  Joseph  E.  "West. 
The  bill  charges,  that  on  the  19th  of  November,  1838,  Marj 


184  CASES  IN  CHANCERY, 


Marwin  et  al.  v.  Smith  efc  al. 


Merwin  entered  up  in  the  inferior  court  of  common  pleas  of  the 
county  of  Atlantic,  a  judgment  against  Joseph  E.  "West,  upon  a 
bond  with  warrant  of  attorney  to  confess  judgment,  condition- 
ed for  the  payment  of  six  thousand  dollars.  That  Longacre, 
Moser  and  Herwin,  the  other  complainants,  on  the  same  19th 
of  November,  entered  up  in  the  said  court  a  similar  judgment 
against  -the  said  Joseph  E.  "West,  upon  a  bond  given  to  them, 
conditioned  for  the  payment  of  nine  thousand  dollars :  and  that 
writs  of  fieri  facias  de  bonis  et  terris,  duly  issued  upon  each  of 
the  said  judgments  to  Isaac  Smith,  sheriff  of  the  said  county  of 
Atlantic,  by  virtue  whereof  the  complainants  acquired  a  lien 
upon  all  the  real  estate  of  the  said  West,  in  the  said  county : 
which  executions  still  remain  unsatisfied.  That  at  the  time  of 
the  delivery  of  the  said  executions  to  the  sheriff,  there  were  in 
his  hands  three  executions  issued  out  of  the  said  court  of  com- 
inon  pleas,  upon  three  several  judgments  against  the  said  "West, 
amounting  together  to  about  nine  hundred  and  fifty  dollars ;  and 
one  execution  issued  out  of  the  supreme  court  of  New-Jersey, 
upon  a  judgment  against  the  said  "West,  for  about  two  thousand 
live  hundred  dollars — all  of  which  were  entitled  to  priority  over 
the  complainants'  executions.  That  the  sheriff,  by  virtue  of  .the 
eaid  writs  of  execution,  or  some  of  them,  had  set  up  advertise- 
ments of  the  sale  of  "West's  real  estate,  as  follows :  "  By  virtue 
of  sundry  writs  of  fieri  facias,  issued  out  of  the  court  of  common 
pleas  of  the  county  of  Atlantic,  will  be  exposed  to  sale  at  public 
vendue,  on  &c.,  at  &c.,  all  the  real  estate  of  Joseph  E.  West, 
viz :  No.  1.  The  villiage  of  Catawba  and  improvement  whereon 
the  said  West  now  lives : "  and  after  thus  specifying  six  tracts, 
the  .advertisement  concludes,  "  together  with  all  his  other  real 
estate  in  the  county  of  Atlantic,  a  more  particular  description  of 
which  will  be  given  on  tho  day  of  sale."  The  bill,  after  setting 
out  the  advertisement  at  length,  and  also  the  advertisement  in- 
serted in  the  newspaper,  which  is  similar  to  the  foregoing,  ex- 
cept that  it  states  that  the  property  was  to  be  sold  "  by  virtue  of 
executions  issued  out  of  the  common  pleas  of  the  county  of  At- 
lantic, and  out  of  the  supreme  court" — states  that  the  sale 


JULY  TERM,  1839.  .    185 


Merwiu  et  al.   v.  Smith  et  al. 


•was  adjourned  from  time  to  time  until  the  2 7th  of  December, 
1S39,  when  the  property  was  exposed  to  sale,  subject  to  certain 
conditions,  which  are  set  forth  in  the  bill.  That  there  was  an- 
nexed to  the  said  conditions,,  an  inventory  and  description  of  the 
real  estate  to  be  sold,  specifying  eleven  different  tracts  and  parcels 
of  land,  and  that  no  other  description  was  given.  That  one  Jo- 
seph "W.Gaskill,  of  said  county,  attended  the  said  sale  as  the  agent 
of  the  complainants,  and  before  the  commencement  of  the  sale 
exhibited  to  the  sheriff  his  written  power  of  attorney  for  that 
purpose,  duly  executed.  That  tract  No.  1  was  cried  off  to  Daniel 
E.  Estell,  for  six  hundred  and  ninety  dollars.  That  there  was 
upon  and  within  that  tract,  as  sold  by  the  sheriff,  a  saw-mill, 
eight  two-story  frame  dwelling-houses  and  lots  of  land,  a  large 
and  elegant  mansion-house  and  out-buildings  which  were  erected 
at  an  expense  exceeding  ten  thousand  dollars;  a  store-house, 
blacksmith's  shop,  wheelwright's  shop,  lime-kiln,  lime-house, 
landing,  two  wharves,  a  fisheryy  a  grist-mill  seat  and  water 
power,  and  about  twelve  hundred  and  eighty  acres  of  land,  in- 
cluding three  hundred  acres  of  timber  land.  That  at  the  time  of 
the  sale  the  tract  was  worth  at  least  twenty-five  thousand  dollars ; 
and  that  after  the  sale  the  purchaser  boasted  that  the  wood  alone 
upon  it  was  worth  sixteen  thousand  dollars.  The  bill  further 
charges,  that  the  other  ten  tracts  enumerated  in  the  sheriff's  in- 
ventory furnished  on  the  day  of  sale,  were  successively  sold ;  that 
the  description  of  said  tracts  was  defective ;  that  in  regard  to 
some  of  them,  the  persons  bidding  did  not  know  which  of  seve- 
ral different  tracts  was  offered  for  sale :  that  under  the  description 
of  fifty  acres  on  Gravelly  Run,  and  three  hundred  and  fifty  acres 
on  the  head  of  Gravelly^Run,  the  sheriff  sold  all  the  claim  of  said 
West  to  all  the  cedar  swamp  on  Gravelly  Run,  for  twelve  hun- 
dred and  fifty  dollars ;  that  "West  owned  no  separate  tracts  of 
cedar  swamps  on  Gravelly  Run,  but  that  the  tracts  so  sold  were 
part  of  an  entire  tract  of  six  thousand  acres ;  that  the  said  tracts 
were  sold  without  any  specification  of  metes  or  bounds,  of  desig- 
nating any  monuments  by  which  the  limits  thereof  could  be  as- 
certained; and  that  aince  the  sale  the  sheriff  has  run  off  and 
25 


183  CASES  IN  CHANCERY, 


Merwin  et  si.  v.  S.uitLi   et  al. 


caused  to  be  surveyed  eight  hundred  acres  of  cedar  swamp,  te- 
ing  a  part  of  said  tract  of  six  thousand  acres,  and  that  he  is 
about  to  execute  a  deed  therefor ;  that  the  said  cedar  swamp  is 
valuable,  the  timber  on  a  single  acre,  in  some  parts  of  the  swamp, 
being  worth  more  than  was  bid  for  the  whole  tract. 

The  bill  further  charges,  that  Gaskill,  the  agent  of  the  com- 
plainants, was  the  highest  bidder  for  each  and  every  of  the  said, 
tracts :  but  that  the  sheriff,  although  Gaskill  was  a  freeholder 
and  resident  of  the  county,  unlawfully  and  causelessly  refused 
his  bid,  and  struck  the  property  off  to  others  who  were  not  the 
highest  bidders.  That  the  title  to  the  land  sold  is  undisputed,  and 
that  it  was  sold  free  of  incumbrances,  except  a  mortgage  of  six 
thousand  dollars  upon  the  Catawba  tract.  That  the  whole 
amount  of  said  sales  was  about  three  thousand  four  hundred  and 
forty  dollars,  insufficient  to  satisfy  the  sheriff's  fees  and  the  exe- 
cutions prior  to  the  complainants',  under  which  the  sale  was  pre- 
tended to  be  made.  That  the  residue  of  West's  real  estate  was 
of  little  value ;  and  that  if  the  sheriff's  sales  were  carried  into 
effect,  the  plaintiff's  executions  would  be  utterly  defeated.  That 
the  Catawba  tract  was  susceptible  of  division  into  a  variety  of 
lots  and  parcels,  marked  by  distinct  and  obvious  bounds ;  and 
that  a  small  part  of  it,  if  fairly  sold  in  separate  parcels,  would 
have  been  sufficient  to  satisfy  all  the  executions  in  the  sheriff's 
hands,  under  which  the  sale  was  pretended  to  be  made.  That 
the  real  estate  sold  by  the  sheriff  was  wantonly  sacrificed  by  his 
illegal  conduct  in  conducting  said  sale  :  that  it  did  not  bring  one 
tenth  of  its  value;  and  that  the  complainants,  through  their 
agent,  were  willing  to  have  bid,  and  would  have  bid  but  for  the 
illegal  conduct  of  the  sheriff,  the  whole  amount  of  the  incum- 
brances on  said  real  estate.  That  the  property  was  advertised 
only  upon  the  executions  issued  out  of  the  common  pleas ;  that 
the  amount  of  said  executions  was  less  than  one  thousand  dol- 
lars, and  that  eight  of  the  said  tracts  were  sold  after  that  amount 
was  realized.  That  the  sheriff  intends  to  execute  deeds  pursu- 
ant to  the  pretended  sale,  and  the  purchasers  are  about  to  take 
possession. 


JULY  TERM,  1839.  1ST 


Menviu   et    al  v.  Smith  et  ul. 


The  bill  prays  that  the  sheriff  may  be  restrained  from  exe- 
cuting a  deed  to  any  of  the  purchasers ;  that  the  purchasers, 
their  servants  and  agents,  may  be  restrained  from  entering  upon 
or  taking  possession  of  any  part  of  the  premises  struck  off  to 
them  respectively  at  said  sale,  and  from  exercising  any  act  of 
ownership  over  the  same ;  that  the  sales  may  be  set  aside  as 
fraudulent  and  void ;  that  any  and  every  deed  made  under  color 
of  said  sale  before  the  service  of  the  injunction,  maybe  delivered 
up  to  be  cancelled,  and  the  purchasers  to  whom  such  deeds  have 
been  delivered  may  be  decreed  to  release  their  interest  in  the 
premises  acquired  under  the  sale,  with  covenants  of  warranty 
H  ruinst  their  own  acts.  The  affidavit  of  two  of  the  complain- 
ants is  annexed  to  the  bill,  verifying  particularly  several  of  the 
material  charges  of  the  bill  as  true  of  their  own  knowledge. 
On  iiling  the  bill  an  injunction  was  granted  by  one  of  the  mas- 
tors  of  the  court,  pursuant  to  the  prayer  of  the  bill. 

On  the  27th  of  February,  1839,  all  the  defendants  filed  a 
joint  and  several  answer  to  the  complainants'  bill.  The  answer 
r.tates,  that  the  real  estate  of  West  was  lawfully  advertised  by 
the  .sheriff,  under  the  writs  issued  both  out  of  the  supreme  court 
and  common  pleas  of  Atlantic.  That  at  the  sale  a  more  partic- 
ular description  of  the  lands  was  given,  the  sheriff  having  pro- 
cured the  best  description  he  could  of  the  same :  that  the  tracts 
were  so  described  that  they  could  readily  be  distinguished;  and 
t'.iat  the  said  tracts  were  severally  struck  off  to  the  highest  bid- 
ders. That  Joseph  W.  Gaskill,  about  the  commencement  of  the 
sale,  exhibited  to  the  sheriff  a  paper  purporting  to  be  a  power  of 
attorney  from  the  complainants  and  Charles  P.  Moses  and  Wil- 
liam B.  Willis,  authorizing  said  Gaskill  to  buy  at  said  sale  as 
their  agent,  but  whether  genuine  or  not  the  defendants  are  igno- 
rant ;  that  the  sheriff  read  the  paper,  and  stated  to  Gaskill  that 
the  persons  whose  names  were  subscribed  to  the  paper  were 
strangers  to  him  ;  that,  as  he  was  informed,  most  of  them  lived 
out  of  the  state,  and  that  he  could  not  take  Gaskill's  bid  under 
that  power  of  attorney  without  some  security  that  he  would  com- 
ply with  the  conditions  of  the  sale,  but  that  if  he  would  procure 


188  CASES  IN  CHANCERY, 


Merwin  et  al.  v.  Smith  et  al. 


proper  security  liis  bid  would  be  received.  That  Gaskill  was  a  man 
of  little  or  no  estate,  real  or  personal ;  that  he  had  lately  failed,  had 
been  a  resident  in  the  county  of  Atlantic  but  a  short  time,  and  whil  e 
there  had  been  employed  as  an  agent  of  West ;  that  he  was  not 
a  man  of  sufficient  property  to  answer  his  bid.  That  the  Ca- 
tawba  tract  was  principally  pine  land,  most  of  which  had  been 
cut  off ;  that  the  improvements  upon  it,  as  alleged  in  the 'bill, 
were  either  entirely  fanciful,  or  were  but  of  little  value ;  that 
the  whole  was  subject  to  a  mortgage  of  six  thousand  dollars, 
upon  which  large  arrears  of  interest  were  due,  and  for  the  fore- 
closure of  which  a  bill  had  been  filed  and  was  then  depending 
in  this  court ;  and  that  at  the  time  of  the  sale  Gaskill  publicly 
proclaimed  that  he  held  a  lease  upon  said  premises  for  two  years. 
That  the  Catawba  tract  sold  for  its  fair  value ;  if  sold  in  separate 
parcels  it  would  not  have  brought  so  much,  and  in  the  opinion 
of  the  sheriff  it  was  the  best  mode  of  selling  the  tract ;  that  it 
ought  to  have  been  sold  in  no  other  way,  and  that  at  the  time  of 
the  sale,  Joseph  W.  Gaskill,  the  agent  of  Joseph  E.  West,  re- 
quested that  it  should  be  sold  altogether  and  as  one  tract.  That 
West's  cedar  swamp  on  Gravelly  Run  was  a  tract  well  known 
by  that  name,  the  limits  of  which  were  sufficiently  defined  by 
the  nature  of  the  swamp ;  the  cedars  growing  only  in  the  swampy 
ground,  so  that  the  outer  lines  of  the  swamp  are  visible  and  dis- 
tinct lines ;  that  it  was  represented  by  West  as  consisting  of  two 
surveys,  one  made  for  fifty  acres  and  the  other  for  three  hundred 
and  fifty  acres ;  that  it  was  offered  by  the  sheriff  as  all  West's 
cedar  swamp  on  Gravelly  Run,  said  to  consist  of  two  tracts,  one 
containing  fifty  acres  more  or  less,  and  the  other  three  hundred 
and  fifty  acres  more  or  less,  and  struck  off  to  Treen  for  twelve 
hundred  and  fifty  dollars.  That  the  description  given  of  the 
property  at  the  sale  was  intelligible  and  understood  by  all  who 
attended  the  sale ;  that  the  title  was  in  doubt,  and  other  circum- 
stances affected  the  sale  of  the  swamp  and  deterred  persons  from 
bidding  as  they  otherwise  would  have  done.  That  the  cedar 
swamp  sold  has  since  been  surveyed,  and  found  to  contain  be- 
tween seven  and  eight  hundred  acres  ;  and  that  the  survey  so 


JULY  TERM,  1839.  189 


Merwin  et  nl.  v.  Soaith  et  nl. 


mado  contains  tlic  land  sold  by  the  sheriff,  and  none  other. 
That  a  sufficient  intelligible  description  was  given  of  all  the 
tracts  sold  ;  that  each  of  them  was  fairly  struck  off  to  the  high- 
est bidder ;  that  Gaskill  bid  for  none  of  the  tracts  except  the  first, 
and  that  he  was  not  the  highest  bidder  for  that.  That  the  sale 
was  conducted  by  the  sheriff  in  good  faith,  and  expressely  denies 
that  it  was  made  fraudulently  and  illegally  on  his  part.  The 
answer  further  states,  that  on  the  12th  day  of  January,  1839, 
at  twelve  o'clock,  noon,  tho  purchasers  attended  at  the  time  and 
place  specified  in  tho  conditions  of  sale  for  the  delivery  of  the 
deeds,  and  that  between  the  hours  of  twelve  and  two  the  deeds 
were  delivered  to  the  several  purchasers  in  pursuance  of  the  sale, 
rjid  that  the  purchase  money  was  likewise  paid  on  that  day, 
prior  to  the  service  of  the  writ  of  injunction ;  that  the  purchasers 
r.ro  now  in  possession  of  the  premises,  and  that  being  so  vested 
with  tho  title  and  possession  the  injunction  cannot  divest  them 
of  the  same. 

Tho  answer  further  denies  all  fraud,  unfairness  or  illegality  in 
conducting  said  sale,  but  states  that  the  same  was  in  all  things 
fair,  legal  and  just ;  and  whether  the  sale  was  legal  and  vested 
tho  title  in  the  grantees,  were  questions  of  law  which  could  be 
tried  in  a  court  of  law ;  and  that  the  complainants  should  be 
left  to  procure  their  redress  in  that  tribunal.  The  answer  was 
sworn  to  by  all  the  defendants,  in  the  usual  fqrm. 

Tho  cause  was  heard  at  April  term,  1839,  upon  the  applica- 
tion of  tho  defendants  to  dissolve  the  injunction  upon  the  answer 
of  tho  defendants  to  tho  complainants'  bill. 

Upon  the  hearing,  the  complainants'  counsel  offered  to  read 
in  evidence  certain  affidavits,  copies  of  which  have  been  served 
upon  the  defendants'  solicitor  six  days  before  the  hearing. 

Wilson,  for  defendants,  objected,  and  insisted  that  the  affida- 
vits could  not  be  read  in  contradiction  to  the  answer.  Ho  cited, 
Rcrkely  v.  Brymer,  9  Vesey,  355 ;  Norway  v.  Rowe,  19  Vesey, 
148 ;  Clapham  v.  WJtite,  8  Vesey,  35 ;  Eden  on  Injunctions, 
79;  Hoffman  v.  Livingston,  1  John.  Ch.  Rep.  211;  East- 


190  CASES  IN  CHANCERY, 


Menvin  et  al.  v.   Smith  et  al. 


burn  et  al.  v.  Kirk,  1  Ibid,  444 ;  JBoberts  v.  Anderson,  2 
202. 

II.  W.  Green  and  Vroom,  contra,  contended  that  the  affida- 
vits were  admissable.     They  insisted, 

1.  That  the  rule  in  regard  to  the  admisibility  of  affidavits 
upon  a  motion  to  dissolve,  was  not  settled.     The  court  exercised 
a  discretionary  power  respecting  it.     Peacock  v.  Peacock,  10 

Vesey,  51. 

2.  That  affidavits  were  admissible  in  cases  of  waste  or  irre- 
parable mischief.     That  the  case  disclosed  by  the  bill  was  anala- 
gous  to  a  case  of  waste,  and  that  the  mischief  sought  to  be  pre- 
vented by  the  injunction  was  irreparable.     Langston  v.  Boyl- 
ston,  2  Vesey,  102 ;  Hanson  v.  Gardner,  7  Vesey,  305 ;  Eden 
on  Injunc.  79 ;  Easfburn  et  al.  v.  Kirk,  1  John.  Ch.  Hep.  444 ; 
Peacock  v.  Peacock,  16  Vesey,  49 ;   Gibbs  v.  Cole,  3  P.  W. 
254. 

3.  That  the  affidavits  were  admissable  in  support  of  the  alle- 
gations in  the  bill  which  are  not  denied  by  the  answer.  Smythe 
v.  Smythe,  1  Swanst.  252  ;  Eden  on  Injunctions,  236,  note  f '/ 
Hid,  80  ;  Hoisted 's  Dig.  243,  s.  5.     The  rule  does  not  apply 
to  allegations  in  the  bill  of  which  the  defendant  in  his  answer 
professes  ignorance,  and  neither  admits  nor  denies.     There  the 
bill  on  the  motion  to  dissolve  an  injunction  is  taken  as  true.   But 
where  an  answer  is  attempted  and  partially  made,  without  an 
express  denial ;  where  the  answer  gives  color  to  a  denial,  or 
raises  a  doubt  about  the  allegations  of  the  bill,  affidavits  in  sup- 
port of  the  bill  may  be  read. 

4.  That  the  affidavits  were  admissible  in  denial  of  new  mat- 
ter contained  in  the  answer,  not  responsive  to  the  bill.    The  an- 
swer alleges  that  the  deeds  were  delivered  and  the  money  paid 
prior  to  the  service  of  the  injunction ;  that  the  defendants  were 
seized  and  possessed  of  the  land  prior  to  the  service  of  the  in- 
junction, and  that  their  seizing  and  possession  cannot  be  divested 
by  the  writ. 


JULY  TERM,  1839.  191 


Merwio  et  al.  v.  Smith  et  al. 


/.  II.  Williamson,  in  reply.  The  general  principle  is  clear, 
that  affidavits  cannot  be  read  in  support  of  the  bill,  where  the 
defendant  relies  upon  his  answer  alone  in  support  of  his  motion. 
The  motion  is  to  dissolve  the  injunction  for  want  of  equity  in 
the  bill.  If  the  answer  is  evasive,  or  does  not  deny  the  whole 
equity  of  the  bill,  the  injunction  must  be  continued. 

It  has  been  decided  by  the  supreme  court  of  the  United  States, 
that  on  a  motion  to  dissolve  an  injunction,  all  tne  material  alle- 
gations of  the  bill  not  fairly  met  and  answered,  are  to  b3  taken 
as  true.  Young  v.  Grundy,  6  Cranch,  51.  In  Westminster 
Hall,  on  the  other  hand,  they  are  not  taken  as  true,  but  affida- 
vits are  admitted  to  prove  them.  The  practice  of  the  supreme 
court  of  the  United  States  is  adopted  in  this  state,  in  the  state  of 
New- York,  and  generally  in  the  United  States. 

All  the  material  allegations  of  the  complainant's  bill  are  suffi- 
ciently answered,  according  to  the  practice  of  this  court.  As  to 
their  own  acts  and  deeds,  the  defendants  answer  positively ;  as  to 
the  acts  and  deeds  of  others,  according  to  their  belief. 

The  reason  why  the  affidavits  cannot  be  received  is,  that  the 
defendant  is  entitled  to  the  protection  of  lu's  conscience,  and  upon 
this  motion  the  truth  of  the  answer  cannot  be  tried.  The  court 
•will  not  decide  whether  the  bill  or  answer  be  true.  Clapham  v. 
White,  8  Vesey,  35. 

Mere  inadequacy  of  price  is  no  ground  for  setting  aside  the 
sheriffs  sale.  Affidavits  in  support  of  the  bill  upon  that  ground 
alone  would  be  immaterial  upon  this  argument.  Williamson 
v.  Dale,  3  John.  Ch.  Rep.  292;  Liwnyston  v.  Byrne,  11  J. 
E.  566. 

BY  THE  CHANCELLOR.  I  am  glad  of  an  opportunity  to 
have  the  rule  settled  respecting  the  admiesibility  of  affidavits  on 
a  motion  to  dissolve  an  injunction.  It  is  always  a  subject  of 
difficulty. 

The  general  rule  is  admitted  to  be,  that  where  an  injunction 
has  been  obtained  upon  the  complainant's  affidavit  alone,  and  an 
answer  is  filed  by  the  defendant,  and  a  motion  thereupon  made 


192  CASES  IK  CHANCEEY, 


Merwin  et  al.  v.   Smith  ei  al. 


to  dissolve  the  injunction,  affidavits  cannot  be  read  either  in  sup- 
port of  the  bill  or  answer.  But  there  are  exceptions  to  the  rule, 
and  the  complainants'  counsel  insist  that  this  case  is  within  the 
exceptions. 

The  first  exception  to  the  rule- which  is  relied  upon  is,  that  in 
cases  of  waste  or  irreparable  injury,  affidavits  may  be  read  in 
support  of  the  bill  to  prove  acts  of  waste  ;  and  it  is  insisted  that 
the  case  presented  by  the  bill  is  analagous  to  waste.  But  the 
cases  are  not  analagous.  The  bill  does  not  charge  that  any 
waste  or  destruction  has  been  committed  or  threatened.  The 
object  of  the  injunction  is  not  to  restrain  the  defendants  from  the 
commission  of  an  unlawful  act,  but  to  prevent  their  obtaining 
title  or  possession  of  property,  which  has  been  unlawfully  sold  by 
the  sheriff.  It  is  not  a  case  of  irreparable  mischief. 

The  second  exception  contended  for  is,  that  affidavits  will  be 
admitted  in  support  of  allegations  contained  in  the  bill  and  not 
expressly  denied  by  the  answer.  But  this  exception  cannot  be 
sustained.  The  practice  of  this  court  is  in  conformity  with  the 
rale  adopted  in  the  supreme  court  of  the  United  States,  viz : 
that  the  allegations  of  the  bill  will  be  taken  as  true,  where  they 
are  not  met  and  denied  by  the  answer.  If  the  answer  does  not 
fully  meet  the  case  disclosed  by  the  bill,  the  injunction  will  be 
sustained. 

The  third  exception  is  well  taken.  "Where  new  matter  is  con- 
tained in  the  answer,  not  responsive  to  the  bill,  which  is  relied 
upon  in  any  way  as  a  foundation  for  setting  aside  the  injunction, 
the  complainant  may  read  affidavits  in  contradiction  of  such  new 
matter.  If,  therefore,  the  defendants'  counsel  intend  to  rely  up- 
on the  new  matter  contained  in  the  answer,  in  support  of  their 
motion  to  dissolve  the  injunction,  the  affidavits  touching  such  new 
matter  must  be  heard. 

The  defendants'  counsel  having  intimated  their  intention  not  to 
use  the  new  matter  contained  in  the  answer,  upon  the  argument, 
the  affidavits  on  the  part  of  the  complainants  were  not  read, 
and  the  case  was  heard  upon  the  bill  and  answer  only. 


JULY  TEEM,  1839.  193 


Merwin  ot  al.  T.  Smith  et  al. 


Wilson  and  1.  H.  Wittianwon,  for  defendants,  in  support 
of  the  motion, 

II.  W.  Green  and  Vroom^  for  complainants,  contra. 

The  defendants'  counsel  cited,  Den  ex  dem,  Inskeep  v.  Le- 
cony,  Coxe,  39 ;  Den  v.  ZeUers,  2  Hals.  153  ;  7  Hals.  300. 

The  complainants'  counsel  cited,  Rev.  Laws,  432,  sec.  9 ; 
Den,  v.  ZellerSj  2  ZZoZ*.  154 ;  Slmonds  v.  Catlin,  2  Came, 
GG;  TF00ok  v,  Monett,  1  J0/m.  <7A.  .Z&p.  502;  Tiernan  v. 
G  JoAft*  Cft.  ^?^?.  411 :  Saaotorts  Rep.  1,  55,  344. 


TITE  CHANCELLOR.  I  have  no  hesitation  in  continuing  tho 
injunction  in  this  cause  until  the  hearing.  There  is  enough  in 
tho  facts  admitted  by  the  answer  itself,  to  justify  that  course. 
The  charges  in  the  bill,  for  the  purposes  of  this  motion,  are  to 
be  taken  as  true  unless  met  by  the  answer,  and  the  allegations 
in  the  answer  are  entitled  to  the  same  credit.  This  was  the  rule 
established  on  the  argument,  and  I  shall  abide  by  that  decision 
and  treat  the  case  accordingly.  It  by  no  means  follows,  that  a. 
technical  denial  of  the  complainant's  equity,  will,  in  all  cases, 
dissolve  the  injunction.  That  must  rest  in  the  sound  discretion 
of  the  court,  and  depend  on  the  peculiar  character  and  circum- 
stances attending  each  case.  But  independent  of  these  rules,  it 
is  manifest  from  the  whole  case  that  the  aid  of  the  court  is  due 
to  the  complainants,  at  least  until  they  have  the  opportunity  of 
taking  the  proofs.  I  shall  consider  it  my  duty,  on  this  motion,, 
to  anticipate  the  decision  on  the  merits  no  farther  than  to  state 
my  present  views  on  some  of  the  leading  points  of  the  case,  not 
meaning  thereby  to  conclude  the  defendants,  if  they  think  pro-- 
per  so  to  do,  from  discussing  them  again  on  the  final  hearing. 

The  complainants,  being  judgment  and  execution  creditors^, 
stand  in  a  position  which  fully  entitles  them  to  be  heard,  and  if 
the  sale  made  by  the  sheriff  is  in  any  respect  illegal,  it  may  bo 
set  aside  at  their  instance. 
26 


104  CASES  IK  CHANCEBY, 


Merwin  et  al.   v.  Smith  et  al. 


First,  As  to  the  advertisement  of  the  sheriff.    Two  objections 
nro  token  to  this :  1.  That  the  one  put  up  in  the  different  town- 
chips  was  upon  the  executions  in  the  common  pleas  alone,  while 
that  in  the  newspaper  at  Camden  was  as  well  upon  the  execu- 
tions out  of  the  supreme  court  as  those  in  the  common  pleas.    -  If 
this  allegation  had  been  true,  the  result  would  have  been  mate- 
trial,  because  the  property  sold  was  much  more  than  sufficient  to 
satisfy  tho  executions  issued  from  the  common  pleas,  and  it  was 
Bold  in  different  parcels.     By  the  answer  I  consider  this  part  of 
the  case  fairly  met :  the  sheriff  says  this  statement  is  not  true, 
for  he  advertised  the  property  on  the  executions  out  of  both  courts, 
as  well  by  the  notices  put  up  in  the  townships  as  that  in  the 
newspaper ;  that  the  complainants  have  stated  the  notice  correct- 
ly from  the  newspaper,  and  that  the  notices  put  up  in  the  differ- 
ent townships  were  "  substantially  "  the  same.    He  then  accounts 
for  the  one  wliich  complainants  saw  put  up  in  the  township,  by 
saying  that  there  were  some  drawn  wrong  and  put  up  by  mis- 
take, but  afterwards  corrected.     The  word  "  substantially,"  it  is 
insisted,  is  too  general  and  evasive ;  that  the  defendant  should 
have  gone  on  and  set  out  particularly  what  the  notice  was  which 
he  did  put  up ;  but  this  is  too  nice  a  distinction.     Taken  togeth- 
er, and  giving  it  a  fair  meaning  and  construction,  the  defendant 
must  be  understood  as  declaring  the  notices  to  have  been  for  a 
sale  upon  the  executions  issued  from  both  courts,  as  well  in  the 
newspaper  as  in  the  advertisements,  and  as  accounting  for  the 
complainant's  charge  in  this  respect  by  the  mistake  which  he 
explains.     This  objection,  therefore,  is  answered.     But  it  is  ob- 
jected in  the  second  place  to  this  advertisement,  that  after  speci- 
fying sundry  lots  and  distinct  parcels  of  property  to  be  sold,  the 
[sheriff  adds,  "  together  with  all  his  (the  defendant's)  other  real 
estate  in  the  county  of  Atlantic,  of  which  a  more  particular  de- 
scription will  be  given  on  the  day  of  sale  ;"  and  that  under  such 
advertisement  on  the  day  of  sale  he  gave  a  more  specific  descrip- 
tion, and  sold  divers  tracts  of  land.   As  to  the  lots  sold  under  this 
description,  a  serious  question  is  raised  whether  the  law  has  been 
complied  with.     My  impressions  are  so  strong  against  its  suffi- 


JULY  TERM,  1839.  195 


Mcrwinct   al.  v.   Smith  etal. 


ciency,  tliat  I  would  not,  as  to  these  lots,  think  it  right  to  dis- 
solve the  injunction,  if  the  case  stood  upon  this  ground  alone. 
IG  this,  in  fact,  any  notice  at  all  ?  The  ninth  section  of  the  act, 
entitled,  "  An  act  making  lands  liable  to  be  sold  for  the  payment 
of  debts,"  makes  it  the  duty  of  the  sheriff  to  advertise  the  time 
r.rid  place  where  the  lands,  tenements,  hereditaments  and  real 
estate  will  be  exposed  to  sale,  one  of  these  notices  to  be  put  up  in 
tho  township  where  the  lands  lie.  This  statute  has  some  sub- 
stantial object  and  meaning,  and  what  can  be  more  important 
than  to  inform  the  public  what  specific  property  is  intended  to  be 
sold.  A  defendant  may  have  many  different  parcles  of  land  in 
a  county,  and  unless  it  be  in  some  way  defined,  so  that  the  pub- 
lic may  know  what  is  intended  to  be  sold,  the  great  use  of  the  no- 
tice is  gone.  I  do  not  know  that  this  question  has  ever  been  set- 
tled in  our  state  courts.  In  the  case  of  Den  v.  Zellers,  2  Hal- 
sted,  154,  the  judge  at  the  circuit  said  nothing  more  than  that  "  a 
small  variance  or  inaccuracy  in  the  description  of  the  premises 
could  not  impeach  the  sale,  when  it  appeared  from  the  description 
it  was  fully  understood  what  property  was  to  be  sold."  This  is 
an  intimation  that  some  description  by  which  the  property  may 
bo  known,  though  imperfect  in  itself,  is  necessary.  My  present 
convictions  are,  that  the  advertisement  is  in  this  particular  de- 
fective, and  not  a  compliance  with  the  law. 

Second.  As  to  the  manner  of  conducting  the  sale.  The  bill 
charges,  that  the  sheriff  sold  in  one  parcel  the  village  of  Cataw- 
ba,  embracing  a  saw  mill  and  water  power  which  produces  an- 
nually six  hundred  dollars  clear  of  all  expenses,  eight  two-story 
frame  dwelling-houses  and  lots  of  land,  eight  one-story  frame 
(1  welling-houses  and  lota  of  land,  a  large  and  elegant  mansion- 
house  and  out-buildings  which  cost  in  its  construction  exceeecling 
ten  thousand  dollars,  a  large  store-house,  blacksmith's  shop, 
wheelwright's  shop,  lime-kiln,  two  wharves,  a  fishery,  a  grist- 
mill seat,  and  about  twelve  hundred  and  eighty  acres  of  land ; 
that  the  property  so  sold  was  worth  at  least  twenty-five  thousand 
dollars,  and  would  command  that  price  at  a  fair  public  salo; 
that  the  whole  sold  in  this  way  for  six  hundred  and  ninety  dol» 


19G  CASES  IK  CHAKCERY, 

Merw  n  et  al.   v.  Smith  et  al. 

lars  only  over  and  above  an  incumbrance  of  six  thousand  dollars ; 
and  that  the  purchaser  has  since  declared  that  the  wood  alone  on 
the  land  was  worth  sixteen  thousand  dollars.  This  is  a  strong 
state  of  facts,  especially  when  made  under  the  oath  of  the  party, 
and  the  manner  in  which  it  is  met  should  be  well  considered. 
The  sale  of  the  entire  tract  in  one  parcel  is  not  denied,  nor  the 
amount  for  which  it  sold ;  but  it  is  alleged  that  a  fanciful  and 
imaginary  value  and  description  have  been  given  to  this  proper- 
ty ;  that  the  mansion-house  and  property  is  an  entire  establish- 
ment, and  that  the  land  is  essential  to  it  and  must  be  gold  with 
it ;  that  the  small  houses  are  only  residences  of  laborers  and 
wood-cutters,  and  that  no  person  would  want  a  part  without  tli3 
whole  of  the  establishment.  It  is  further  urged  that  there  was 
a  mortgage  on  the  entire  property  of  six  thousand  dollars,  which 
rendered  it  proper  that  it  should  be-  sold  in  one  lot. 

I  will  not  decide,  at  present,  on  the  propriety  or  impropriety 
of  the  sheriff's  course  on  this  part  of  tho-ease,  nor  indeed  should 
I  until  tho  facts  are  more  fully  before  me.  This- discretion!  con- 
fided to  Liin  as  a  public  officer,  in  selling  property,  must  not  be 
unnecessarily  or  hastily  interf erred  with,  and  certainly  not  with 
out  tho  charges  being  fully  sustained  by  indisputable  evidence ; 
but  this  wholesale  method  of  disposing  of  a  defendant's  property 
can  never  be  justified  upon  any  other  ground  than  as  being  the 
best  mod  ci  for  making  it  bring  the  most  money.  A  property 
may,  indeed,  be  so  circumstanced,  one  part  so  dependent  on  the 
other,  as  to  require  a  sale  in  large  parcels ;  but  the  general  rule 
is,  that  it  must  be  sold  in  different  parcels  if  plainly  divisible. 
Woods  v.  Monelly  1  John  Ch.  JBep.  505 ;  Tiernan  v.  Wilson, 
G  Ilid>  413. 

A  defendant  in  execution  Las  his  rights,  and  his  property  fc 
not  to  be  sold  under  disadvantageous  circumstances.  In  this 
case,  the  result  of  the  sale  would  Beem  to  have  been  peculiarly 
unfortunate ;  for  the  charge  in  the  bill  ia  plainly  made,  that  the 
purchaser  has  boasted  that  the  wood  on  the  premises,  for  the 
whole  of  which  lie  gave,  including  the  incumbrances,  less  than 
seven  thousand  dollars,  is  worth  sixteen,  thousand  dollars.  This 


JULY  TERM,  1839.  197 


Mr rwiu  et  ul.  T.  Smith  et  uL 


is  not  met  by  the  answer  in  any  way.  I  am  willing  to  have  the 
witnesses  examined  on  this  part  of  the  case,  before  the  sheriffs 
title  is  passed  to  the  purchaser, 

Third,  As  to  the  bid  of  Gaskill,  the  agent  The  facts  re- 
specting him  are  disclosed  by  the  answer  itself.  The  complain- 
ants, being  execution  creditors  to  the  amount  of  fifteen  thousand 
dollars  in  the  hands  of  the  sheriff,  appointed  this  man  their  agent, 
with  authority  to  buy  for  them  in  case  a  sale  was  made.  When 
he  came  to  act  for  his  principals,  he  produced  his  written  power  of 
attorney,  under  their  hands  and  seals,  and  offered  to  leave  it  with 
the  sheriff.  The  sheriff  declined  receiving  his  bid  without  he 
gave  security.  This  was  the  same  thing  as  shutting  him  out 
altogether.  The  consequence  was  the  complainants,  who  had  a 
deep  interest,  were  in  fact  unrepresented  at  the  sale.  The  whole 
property  was  sold  for  a  little  less  than  to  satisfy  the  prior  execu- 
tions, and  their  demands  were  completely  lost.  The  sheriff  had 
no  right,  in  my  opinion,  to  deny  to  this  agent  the  privilege  of 
being  a  bidder  for  his  principals,  upon  any  ground  yet  exhibited 
in  the  cause.  He  was  a  freeholder  in  the  county,  though  for  a 
email  amount,  and  his  character  no  way  impeached.  He  was  to 
tid  on  the  credit  of  his  employers,  and  not  his  own.  In  the  case 
of  Stevenson  and  Woodruff  v.  Block^  Saxton,  344,  it  wap 
held,  that  a  sheriff  had  no  right  to  insist  on  any  terms  at  a  sale 
not  warranted  by  law,  or  to  create  liabilities  which  the  law  does 
not  impose.  Can  it  be  that  a  sheriff  may  impose  these  extra 
terms  on  a  fair  agent,  fully  authorized  ? — terms  which  in  effect 
preclude  all  opportunity  of  competition  for  the  property,  and  the 
party  be  denied  all  relief ,  upon  the  pretext  that  it  was  the  sheriff's 
discretion,  and  ho  may  do  as  he  pleases  ?  This  exercise  of  tho 
sheriff's  discretion  must  be  a  legal  one,  and  so  controlled  as  to 
work  no  injustice  or  oppression.  Had  tliis  bidder  been  allowed, 
it  is  not  an  improbable  result  that  these  entire  executions  might 
have  been  satified  at  this  sale.  The  complainants  say  expressly 
they  would  have  bid  that  amount.  I  do  not  intend  to  say  that 
a  sheriff  may  not  refuse  to  take  the  bid  of  an  irresponsible  man, 
or  of  any  one  when  he  may  be  well  satisfied  the  sale  could  onlj 


103  CASES  IN  CHANCERY, 


MerwLi  et  al.  v.  Smitli  et  ol. 


"be  embarrassed  by  taking  it.  Tko  propriety  of  such  a  coursa 
must,  however,  be  always  open  to  be  judged  of  by  the  evidence. 
This  is  a  different  case.  The  bidder  was  an  agont  representing 
largo  execution  creditors,  and  was  to  act  ou  the  faith  due  to  them 
rather  than  himself.  They  ware  not  present,  nor  were  thoy  ap- 
prised that  this  security  would  be  required.  As  this  objection 
covers  the  whole  case,  it  is  enough  in  itself  to  demand  of  tho 
court  a  continuance  of  the  injunction  until  it  can  bo  further  look- 
ed into. 

The  fourth  and  fifth  objections  urged  against  this  sale,  relate  to 
the  sale  of  the  cedar  swamp  and  the  enormous  sacrifice  of  pro- 
perty. It  is  not  necessary  to  express  any  opinion  upon  them  at 
present,  the  case  as  to  the  propriety  of  continuing  this  injunction 
having  been  fully  settled  by  the  other  points.  If  it  shall  turn  out, 
however,  finally,  that  upon  a  sale  by  the  sheriff  of  two  tracts,  one 
of  fifty  acres  and  one  of  three  hundred  and  fifty  acres,  it  is  propos- 
ed to  convey  a  tract  of  near  eight  hundred  acres,  and  that  a  pro- 
perty worth  rising  thirty  thousand  dollars  has  been  by  this  whole 
course  of  proceeding  sold  for  about  tliree  thousand  five  hundred 
dollars,  it  will  call  loudly  for  the  consideration  of  the  court. 

There  is  one  suggestion  made  on  the  argument  which  should 
Le  noticed  ;  and  that  is  that  Mr.  West,  the  defendant  in  the  exe- 
cutions, may  commit  waste  with  impunity  in  the  event  of  the  in- 
junction not  being  dissolved.  As  this  is  a  mere  suggestion,  and 
there  is  nothing  to  justify  any  belief  of  collusion  between  him  and 
the  complainants,  I  cannot  presume  it  will  take  place.  Should 
any  such  case,  however,  be  made  to  appear  by  proof  hereafter,  it 
is  very  easy  to  apply  a  remedy,  by  requiring  the  complainants  to 
pay  off  the  prior  executions,  or  by  dissolving  the  injunction.  It 
is  my  intention,  pending  this  controversy,  that  the  property  shall 
not  be  wasted. 
Motion  for  dissolving  the  injunction  denied. 

CITED  in  Den  v.  Pkilhower,  4  Zdb.  790 ;  Coxe  v.  Hoisted,  1  Gr.  Ch. 
819;  Penn  v.  Craig,  Id.  497;  Reuton  v.  Chapin  &  Carter,  1  Stock. 
63;  ParkJiurst  v.  Cory,  8  Stock.  237;  Corles  v.Lasliley,  2  Me  Car. 
1 18  ;  Vanduyne  v.  Vanduyne,  1  C.  E.  Gr.  94  ;  Firmstonev,  De  Camp, 
2  C  E.  Gr.  816;  Vreeland  v.  N.  J.  Stove  Co.  10  C.  E.  CV.  141); 
Myer  v.  Hithop,  12  C.  E.  Or  144;  Holme*  v.  Steele,  1  Stew.  174. 


JULY  TERM,  1839. 


J0RK  MILLEB  v.  GEORGE  R.  CHETWOOD  and  others. 

Upon  a  bill  for  .specific  performance  of  a  written  agreement,  it  is  competent 
f^r  the  defendant  to  prove  parol  declarations  made  at  the  time  of  the  con- 
tract, though  not  incorporated  in  the  agreement,  in  order  to  rebut  the  com- 
plainant's equity. 

The  admissibflity -of  such  evidence  depends  upon  the  purpose  for  which  it  ia 
introduced.  It  is  admissibl o  for  the  purpose  of  defeating  the  specific  per- 
formance, but  will  not  bo  received  with  a  view  to  having  the  coulxact  per. 
formed  with  an  abatement  of  the  price. 

This  court,  on  a  bill  for  specific  performance,  not  being  bound  to  aid  the  com- 
plainant unless  his  claim  is  founded  injustice,  will  look  into  all  the  circum- 
stances, and  s  e  -whether  any  fraud  was  practised  at  t'.:e  time  of  the  sale. 

If  misrepresentations  were  made  at  the  time,  though  not  in  the  writing,  cal- 
culated to  mislead  in  any  essential  particular,  the  party  will  be  left  to  his 
remedy  at  law. 

On  a  bill  for  a  specific  performance,  the  court  will  grant  its  aid  or  not  accord- 
ing  to  the  justice  of  the  case  ;  and  it  will  never  interfere  where  the  party 
lias  practiced  any  fraud,  or  been  guilty  of  misrepresentation  in  any  material 
particular. 

That  the  purchaser  bought  by  the  lot  or  parcel  and  not  by  the  acre,  that  the 
land  WRS  beforo  his  eyes  and  subject  every  day  to  his  observation,  can  fur- 
nish no  excuse  to  the  vendor  for  h  s  misrepresentation.  He  is  bound  to  do. 
dare  the  truth  at  any  rate. 

BILL  filed  October  llth,  1836,  for  a  specific  performance  of 
the  following  agreement : — 

"  Article  of  agreement  made  and  entered  into  this  seventh  day 
of  August,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  thirty-five,  between  John  Miller,  of  Elizabeth-Town,  in  tho 
county  of  Essex,  and  state  of  New-Jersey,  of  the  first  part,  and 
doctor  George  R.  Chetwood,  of  the  same  town,  county  and  state, 
of  the  second  part.  This  witnesseth,  that  the  said  George  R. 
Chetwood  hath  bought  of  the  said  Jolin  Miller,  for  the  sum  of 
five  thousand  dollars,  good  and  lawful  money  of  the  United 
States  of  America,  all  that  tract  and  parcel  of  land  lying  and 
being  in  Elizabeth-Town,  in  the  county  of  Essex,  and  state  of 
New-Jersey ;  bounded  west  and  north  by  land  of  Isaac  Jaques, 


200 


Miller  v.  Chetwood  et  al. 


east  by  land  of  the  late  Thomas  Price,  deceased,  and  south  by  the 
road  leading  to  Elizabeth-Town  Point.  The  condition  of  this 
agreement  is,  that  the  above  tiamed  George  K.  Chetwood  shall 
pay  to  the  said  Miller  one  thousand  dollars  on  the  first  day  of 
September  next,  when  the  said  Miller  will  give  a  good  deed  of 
said  land ;  the  remaining  four  thousand  dollars  to  remain  on 
bond  and  mortgage,  with  interest  from  date ;  that  is,  two. thou- 
sand dollars  on  the  first  day  of  April  next,  and  two  thousand  dol- 
lars on  the  first  day  of  April,  one  thousand  eight  hundred  and 
tf  lirty-seven.  The  said  Miller  has  reserved  to  himself  all  wood, 
crops  and  movables,  and  has  to  the  first  day  of  May  next  to 
take  off.  said  wood,  when  the  possession  will  be  given  to  the  said 
doctor  Chetwood." 

The  cause  was  brought  to  a  hearing  on  the  pleadings  and 
proofs,  on  the  29th  of  April,  1839. 

EAas  Vanarsdale,  jun.  for  complainant,  insisted  that  the 
court  has  jurisdiction.  2  Story's  Eq.  23,  sec*  716 ;  5  Peters' 
Rep.  2G4  ;  Newland  on  Contracts,  88. 

Evidence  touching  the  value  of  the  land  is  irrelevant,  because 
inadequacy  of  price  is  not  insisted  on  by  way  of  defence  in  the 
answer.  Fraudulent  representation  is  the  only  ground  set  up  in 
the  answer.  1  Simon's  Rep.  376>  cited  in  2  Oond.  Enq.  Ch. 
Rep.  191. 

Fraud  will  not  be  presumed.  The  party  setting  up  fraud 
must  prove  it.  8  Peters1  Rep.  253 ;  2  John.  C7ian.  Rep.  633 ; 
Saxton's  Rep.  322  ;  Sugden  on  Vendors,  89,  92,  117.. 

Parol  conversations  previous  to  the  agreement,  are  not  admis- 
ciblc.  "Whatever  may  have  been  said  about  the  quantity  of  land, 
as  it  was  not  inserted  in  the  agreement,  cannot  bind  the  parties. 

1  Peters'  Rep.  600 ;   4  Taunton,  779 ;  4  Brown's  C.  C.  518 ; 

2  W.  Black.  1249. 

If  the  purchaser  meant  to  contract  for  nine  acres,  he  should 
It:  ve  provided  for  it  in  the  agreement.  3  Merivale,  704;  2 
Jo'.n.  Rep.  39 ;  5  Mass.  R.  357. 


JULY  TERM,  1839.  201 


Miller  v.  Chetwood  et  nl. 


Had  the  land  turned  out  to  be  more  than  nine  acres,  the  ven- 
dor could  have  had  no  relief.  S  Cranch,  375. 

Complainant's  counsel  also  cited  17  Vesey,  25  ;  2  Freeman, 
107 ;  4  Kent's  Com.  460 ;  6  Paige's  Rep.  254. 

J.  J.  CJietwood,  for  defendant's  contra.  The  defendants  do 
not  seek  the  interference  of  the  court.  The  complainant  asks 
equity,  and  he  must  do  equity.  The  defendants  rely  upon  two 
grounds : — 1.  Misrepresentation  by  tho  vendor  as  to  the  number 
of  acres.  2.  The  enormity  of  the  price. 

1.  Tho  misrepresentation  here  is  of  the  essence  of  the  con- 
tract. It  makes  a  difference  of  one  third  to  the  purchasers.  A 
court  of  equity  will  not  compel  a  specific  performance  where 
there  has  been  a  fraud  or  concealment  as  to  the  number  of  acres. 
Winch  v.  Winchester,  1  Vesey  and  B.  378;  Veeder  v.  Fon- 
da, 3  Paige,  98,  99 ;  Morttock  v.  Butter,  10  Vesey,  292 ;  Dyer 
v.  Hargrove,  Ibid,  507 ;  King  v.  Morford  and  others,  Sax- 
ton,  274 ;  Hodman  v.  ZrJley  et  al.,  laid,  321,  328. 

/.  H.  Williamson,  for  defendants.  The  complainant  asks  the 
relief  sought,  not  as  a  matter  of  right,  but  of  favor.  A  contract 
may  be  binding,  and  yet  the  court  may  not  think  it  a  proper 
case  to  decree  a  specific  performance.  Parol  evidence  is  always 
admissible  to  meet  the  equitable  matter  upon  which  the  com- 
plainant asks  the  aid  of  the  court.  The  important  distinction  is, 
whether  the  evidence  is  afforded  by  the  complainant  or  the  de- 
fendant. A  defendant  will  be  allowed  to  prove  by  parol  any- 
thing which  will  rebut  the  equity  of  the  bill.  The  Marquis 
Townscnd  v.  Stangroom,  6  Vesey,  328,  333 ;  4  Brown  C.  C. 
519,  n. ;  WooUam  v.  Hearn,  7  Vesey,  211,  218,  219. 

Misrepresentation,  though  in  a  slight  degree,  is  an  objection 
to  a  specific  performance.  The  party's  remedy  is  by  action  of 
covenant  at  law.  Cadmon  v.  Horner,  18  Vesey,  10 ;  Tfo 
Mechanics'  Bank  of  Alaxandria  v.  Lynn,  1  Peters,  282-3. 

This  was  a  representation  wilfully  made  by  the  complainant. 
But  even  if  the  representation  were  not  made  wilfully,  the  court 
27 


202  CASES  IK  CHANCERY, 


Miller  v.  Chotwood  et  al. 


would  not  compel  a  specific  performance.  Veeder  v.  Fonda. 
3  Paige,  94,  98 ;  Hill  v.  Buckley,  17  Vescy,  398. 

Again,  tins  was  a  hard  and  unreasonable  bargain.  The  court 
will  not  enforce,  by  its  extraordinary  aid,  these  speculating  bub- 
bles, but  leave  the  parties  to  their  remedies  at  law.  It  will  not 
interfere  in  order  to  enforce  these  hard  bargains  even  when  fairly 
entered  into.  Barnadiston  v.  Lingood,  2  Atkyns,  134  ;  Bux- 
ton  v.  Lister  et  al.  3  Afkyns,  386  ;  Townskend  v.  Stangroom, 
6  Vesey,  328 ;  Mortlock  v.  Butter,  10  Vesey,  292. 

The  bill  ought  to  be  dismissed  with  costs.  If  the  misrepre- 
sentation made  by  the  complainant  was  wilful,  costs  should  be 
allowed  against  him. 


E.  Vanai'sdale,  for  the  complainant,  in  reply.  The  only  de» 
fence  set  up  in  the  answer,  is  the  deficiency  in  the  quantity  of 
land ;  the  defendant,  therefore,  can  rely  upon  no  other.  The 
court  must  be  confined  to  the  issues  framed  by  the  pleadings. 
The  date  may  or  may  not  be  of  the  essence  of  the  contract ;  in 
like  manner  the  quantity  of  land  may  or  may  not  be  of  the  es- 
sence of  the  contract.  A  refusal  of  a  decree  must  be  for  some 
misrepresentation  about  that  of  which  is  of  the  essence  of  the  con- 
tract. 4  Kent's  Com.  466. 

The  contract  in  this  case  was  for  the  sale  of  land  by  certain 
"boundaries,  and  not  by  number  of  acres  or  quantity.  There  is 
no  pretence  of  deception  in  the  boundaries.  The  purchaser 
knew  the  lot,  lived  in  the  same  town,  and  could  see  it  every 
day.  It  was  the  defendants's  folly  not  to  have  ascertained  the 
quantity.  The  complainant  never  had  it  surveyed.  It  was 
done  by  computation  and  estimate.  The  evidence  shows  it  to 
have  been  a  bargain  for  the  lot,  and  not  for  any  specific  num- 
ber of  acres.  Quantity  was  not  of  the  essence  of  the  con- 
tract. 

As  to  hard  cases,  they  must  be  so  at  the  time  the  contract 
was  made :  they  cannot  be  made  by  a  change  of  times.  The 
price,  at  the  time  of  the  contract,  was  not  exorbitant. 


J[JLY  TERM,  1839.  203 


Miller  v.  Chetwood  et  nl. 


THE  CHANCELLOR.  The  object  of  this  suit  is  to  compel  a 
specific  performance  of  a  contract  made  by  the  defendant,  Georgo 
R.  Chetwood,  with  the  complainant,  on  the  seventh  of  August, 
in  the  year  eighteen  hundred  and  thirty-five,  for  the  purchase  of 
a  lot  of  land  in  Elizabeth-Town.  The  agreement  is  in  writing, 
and  by  it,  Chetwood  agrees  to  purchase  the  land  for  five  thousand 
dollars.  The  land  is  described  as  "  lying  and  being  in  Eliza- 
beth-Town, in  the  county  of  Essex,  and  state  of  New-Jersey ; 
bounded  west  and  north  by  land  of  Isaac  Jaques,  east  by  land 
of  the  late  Thomas  Price,  deceased,  and  south  by  the  road  lead- 
ing to  Elizabeth-Town  Point."  This  is  the  only  description 
of  the  premises  contained  in  the  writing :  there  are  no  courses  giv- 
en, nor  is  the  quantity  of  land  stated.  One  thousand  dollars  of 
the  purchase  money  was  payable  on  the  first  day  of  September 
next  after  the  date  of  the  agreement,  when  the  deed  was  to  bo 
executed,  and  the  remaining  four  thousand  dollars,  with  interest, 
to  bo  secured  by  mortgage  on  the  premises,  payable,  two  thou- 
sand dollars  thereof  on  the  first  day  of  April  then  next,  and  the 
remaining  two  thousand  dollars  on  the  first  of  April,  eighteen 
hundred  and  thirty-seven.  The  first  payment  of  one  thousand 
dollars  has  been  made,  and  the  remainder  is  still  unpaid.  Thero 
is  no  difficulty  or  question  made  as  to  the  tender  of  the  deed  at 
the  time  fixed  by  the  agreement ;  the  legal  formalities,  in  this 
respect,  appeal*  to  have  been  complied  with  on  the  part  of  tho 
complainant.  The  defence  is  placed  by  the  answer  on  a  single 
point ;  that  the  complainant,  at  the  time  of  negociating  tho  said 
contract,  and  before  and  at  the  time  of  executing  the  aforesaid 
agreement,  represented  expressly  to  Mr.  Chetwood  that  the  said 
tract  of  land  contained  about  nine  acres,  whereas  when  the  deed 
was  tendered  it  appeared  that  there  was  in  reality  but  six  acres 
and  sixteen  hundredths  of  an  acre — being  a  less  quantity  by 
nearly  one  third  than  the  party  supposed  he  was  purchasing. 
Chetwood  declares  he  would  never  have  purchased  and  agreed  to 
pay  so  large  a  sum  for  the  land,  but  from  a  confidence  in  the 
truth  of  the  foregoing  statement  as  to  the  quantity  ;  that  the 
writing  was  drawn  in  a  hurry,  was  intended  only  as  a  memo- 


CASES  IN  CHANCERY, 


Miller  v  Che  wood  et  al 


randuin  of  the  terms  upon  which  the  land  was  sold,  and  was 
not  considered  at  the  time  as  in  any  degree  governing  the  quan- 
tity. Upon  these  grounds  the  defendants  insist  that  the  com- 
plainant is  not  entitled  to  the  aid  of  this  court. 

The  first  subject  of  inquiry  in  this  case  must  be,  to  ascertain 
how  the  facts  are ;  for  these  are  matters  of  defence  which  must 
be  proved.  There  is  no  dispute  that  the  actual  quantity  of  land 
13  only  six  acres  and  fifteen  or  sixteen  hundredths.  The  deed 
tendered  to  the  defendant  makes  it  six  acres  and  sixteen  hun- 
dredths of  an  acre,  and  Mr.  Marsh,  a  surveyor  who  has  made  a 
calculation  of  the  contents  of  the  deed,  makes  it  six  acres  and 
fifteen  hundredths  of  an  acre,  differing  only  one  hundredth  of 
an  acre.  From  the  evidence  of  Lucy  Moore,  a  witness  on  the 
part  of  the  complainant,  and  a  doctor  James  Bell,  a  witness  on 
the  part  of  the  defendants,  (these  being  the  only  persons  present 
at  the  execution  of  the  papers,)  the  course  of  the  transaction  was 
this :  Chetwood  applied  to  the  complainant  for  the  purchase  of 
the  land,  and  which  it  was  very  evident  he  was  anxious  to  ob- 
tain; the  price  was  agreed  on,  and  to  bind  the  complainant  the 
defendant  paid  fifty  dollars,  and  took  a  receipt  specifying  on  what 
account  the  same  was  paid.  This  was  done  in  the  presence  of 
Mrs.  Moore,  at  complainant's  house,  and  no  doubt,  as  she  says, 
to  secure  the  purchase.  Nothing  was  said  at  that  time  about  the 
quantity  of  land.  Mrs.  Moore  saw  only  the  first  paper  signed, 
being  the  receipt  for  the  fifty  dollars.  The  parties  thinking  some 
further  writing  necessary,  the  complainant  himself  drew  up  the 
agreement  on  which  he  now  rests,  of  which  there  are  counter- 
parts, one  signed  by  the  complainant  and  wife,  and  the  other 
by  the  defendant,  Chetwood.  This  last  agreement  must  be  the 
one  referred  to  by  doctor  Bell  in  his  evidence,  which  he  declai 
was  executed  at  the  defendant's  office,  with  whom  he  was  at 
time  studying  medicine ;  and  lie  declares  that  previous  to  si^ 
the  agreement,  "doctor  Chetwood  asked  the  complainant 
the  quantity  of  land  was,  and  complainant  said  about  nine  acres.' 
Upon  his  cross-examiilation  the  witness  could  not  be  positive 
that  the  above  conversation  about  the  quantity  was  before  or 


JULY  TERM,  1839.  205 


Miller  v.  Chetwood  et  al. 


after  signing  the  paper,  but  thinks  it  was  before.  They  had 
before  them  at  the  time  the  receipt  for  the  fifty  dollars,  and  the 
agreement.  There  does  not  appear  to  be  any  conflict  between 
these  witnesses :  their  statements  are  entirely  consistent  with 
each  other.  It  may  be  all  true,  that  when  the  receipt  for  the  fifty 
dollars  was  signed,  nothing  was  said  about  the  quantity  of  land, 
and  yet  it  may  have  been  often  stated  in  the  course  of  conver- 
sation previously  thereto,  and  have  been  explicitly  referred  to 
when  the  agreements  were  exchanged  at  the  office  of  doctor 
Chetwood. 

These  are  the  only  witnesses  who  can  speak  of  what  took 
place  directly  between  the  parties,  and  by  that  alone,  as  there  is 
nothing  to  impeach  in  any  way  the  testimony  of  doctor  Bell,  I 
should  feel  fully  satisfied  that  the  complainant  did  in  truth  rep- 
resent the  quantity  of  land  to  be  about  nine  acres.  But  thero 
are  other  strong  facts  corroborative  of  this  conclusion.  The  com- 
plainant declared,  about  the  time  of  this  sale,  to  several  other 
persons,  that  there  was  about  nine  acres  in  the  tract.  lie  did 
so  to  Meline  "W.  Ilalsey,  to  Elijah  Kellogg,  to  Keen  Pruden, 
and  to  George  W.  Ilalsted.  In  fact  the  complainant,  when  spo- 
ken to  on  the  subject  by  John  J.  Bryant,  said,  "  he  did  not  know 
that  he  told  doctor  Chetwood  that  the  property  contained  nine 
acres,  but  he  might  have  done  so,  as  he  always  thought  it  con- 
tained nine  acres  and  thought  so  still."  He  even  went  into  a 
calculation  to  show  that  he  had  purchased  several  parcels,  and 
after  selling  off  parts  of  the  same  it  left  nine  acres.  All  this  con- 
versation, although  not  carried  on  in  the  presence  of  doctor 
Chetwood,  goes  to  confirm,  or  at  least  to  render  it  highly  proba- 
ble, that  the  complainant  spoke  of  this  land  as  containing  the 
nine  acres. 

Thus  far  it  would  seem  like  a  representation  of  the  quantity 
made  by  the  complainant  under  a  misapprehension  on  his  part, 
and  particularly  so  as  he  derived  his  knowledge,  not  from  an 
actual  survey  of  the  lot  in  question,  but  by  a  calculation  made 
up  from  the  amount  he  originally  purchased,  deducting  therefrom 
the  amount  he  had  sold  off.  But  there  are  other  parts  of  tho 


206  CASES  TN  CHANCERY, 


Miller  v.  Clietwo  tl  ct  al. 


evidence  which,  to  say  the  least,  are  embarrassments  in  thy  \y<iy 
of  coming  to  so  charitable  a  conclusion.  It  seems  that  to  James 
F.  Meeker,  the  assessor  of  the  township  of  Elizabeth,  in  ths 
year  eighteen  hundred  and  thirty-five,  (the  very  year  this  con- 
tract was  made,)  the  complainant  gave  in  this  land  at  its  trua 
quantity  of  six  acres  and  a  small  fraction ;  and  as  fractions  were 
not  counted  by  the  assessors  when  under  half  an  acre,  the-  land 
was  actually  taxed  at  six  acres.  To  Major  Denman  also,  shortly 
after  the  sale  to  doctor  Chetwood,  he  said  he  believed  there  was 
in  the  lot  between  six  and  seven  acres.  Isaac  Jaques,  the  very 
man  who  made  the  last  purchase  of  part  of  the  complainant's 
land  previous  to  doctor  Chetwood,  says,  he  understood  the  bal- 
ance left  was  between  six  and  seven  acres.  To  Mr.  Ilalsted,  the 
complainant,  a  short  time  before  the  agreement  in  this  cause, 
after  saying,  that  the  lot  in  question  contained  about  nine  acres, 
stated,  that  the  property  had  been  surveyed  by  Mr.  Dayton, 
(whether  it  was  the  whole  tract,  or  only  the  part  sold  to  Jaques, 
witness  did  not  recollect,)  and  that  the  complainant  carried  the 
chain  ;  that  he  carried  the  links  of  the  chain  very  loose,  did  not 
pull  it  tight,  and  that  the  survey  as  made  by  Mr.  Dayton  made 
it  about  nine  acres. 

The  fact,  then,  I  consider  established,  that  the  complainant 
did  represent  to  the  purchaser,  at  the  time  of  the  sale,  that  there 
were  about  nine  acres,  when  in  truth  there  were  but  six  acres  and 
sixteenth  hundredths  of  an  acre.  How  far  this  misrepresentation 
was  wilfully  made,  it  is  not,  perhaps,  necessary  for  me  to  decide, 
though  I  could  wish  there  was  less  reason  from  the  evidence  to 
think  it  was  so  made. 

It  is  objected,  however,  that  all  this  evidence  is  incompetent, 
and  must  bo  overruled,  because,  whatever  might  have  been  said 
it  was  not  incorporated  in  the  agreement,  and  therefore  cannot 
be  used.  The  agreement,  it  must  be  remembered,  was  d 
by  the  complainant  himself,  and  is  silent  as  to  the  quantity  of 
the  land.  A  number  of  cases  at  law  were  cited  by  the  com- 
plainant's counsel,  to  show  that  parol  evidence  is  inadmissible  i 
contradict  or  vary  a  written  agreement,  but  those  cases  cannc 


JULY  TEEM,  1839.  207 


Miller   v.  Chotwo  il  ct  nl. 


control  the  present  question.  In  an  action  upon  the  convenient, 
tho  party  must  rely  upon  his  agreement,  and  it  would  be  dan- 
gerous to  let  him  recover  upon  any  representations  or  statements 
made  at  the  time  which  were  not  embodied  in  the  agreement. 
In  the  present  case,  the  extraordinary  aid  of  this  court  is  asked 
by  the  complainant,  beyond  his  common  law  remedy,  and  in 
Buch  case  the  defendant  may  be  allowed  this  evidence  to  rebut 
the  complainant's  equity.  All  the  cases  recognized  this  distinc- 
tion, and  it  is  founded  in  reason.  This  court,  not  being  bound 
to  aid  the  complainant  unless  his  claim  is  founded  in  justice,  will 
look  into  all  the  circumstances,  and  see  whether  any  fraud  was 
practiced  at  the  time  of  the  sale.  If  representations  were  made 
at  tho  time,  though  not  in  the  writing,  calculated  to  mislead  in 
any  essential  particular,  the  party  will  be  left  to  his  remedy  at 
kvr.  There  is  a  difference,  also,  in  the  admissibility  of  the  evi- 
dencc  in  this  court,  whether  it  be  offered  by  the  complainant 
with  a.  view  to -compel  a  specific  performance,  or  by  the  defend- 
ant to  rebut  the  equity  of  the  complainant.  The  true  rule,  as  it 
appears  to  me,  is  to  be  found  in  the  case  of  Winch  v.  Win 
Chester,  I  Vesey  and  Beam,  378.  There  the  court  would  not 
receive  parol  evidence  with  a  view  to  the  defendant's  having  the 
contract  performed  with  an  abatement  of  the  price,  but  it  was 
admitted  to  defeat  altogether  the  specific  performance.  The  au- 
thorities on  this  subject  will  be  found  in  a  note  to  the  case  of 
Rich  v.  Jacltson,  in  4  Brown? 8  C.  C.  519 

The  facts  having  thus  been  established  by  competent  evidence, 
the  question  is  fairly  presented,  whether  the  complainant  has  en- 
titled himself  to  the  interference  of  this  court.  In  the  case  just 
cited  from  1  Yesey  and  Beam,  the  written  description  of  the 
land  was,  "  containing  by  estimation  forty-one  acres,  be  the  same 
more  or  less."  The  quantity  turned  out  to  be  less  than  that 
named  by  five  acres  and  a  fraction.  The  master  of  the  rolls  re- 
fused a  decree  and  dismissed  the  bill.  For  the  general  rales  ap- 
plicable to  this  case,  I  refer  to  Morttock  v.  Butter,  10  Vesey, 
292.  In  the  case  of  Cadman  v.  Homer,  18  Vesey,  11,  the 
master  of  the  rolls  says,  "  as  upon  the  evidence  the  plaintiff  has 


208  CASES  E5T  CHANCERY, 

Miller  v.  Ohetwood  et  al. 

been  guilty  of  a  degree  of  misrepresentation ;  operating  to  a  cer- 
tain, though  a  small  extent,  that  misrepresentation  disqualifies 
him  for  calling  for  the  aid  of  a  court  of  equity,  where  he  must 
come,  as  it  is  said,  with  clean  hands.  He  must,  to  entitle  him- 
self to  relief,  be  liable  to  no  imputation  in  the  transaction." 
The  same  views  will  be  found  to  be  taken  in  the  state  of  New- 
York,  and  in  this  court.  See  Veederv.  Fonda,  3  Paige,  97: 
King  v.  Morford  and  others,  Saxton.  274;  Rodman  v. 
ZiUey  and  others,  Saxton,  321.  In  the  case  of  King  v. 
Morford,  Saxton,  281,  chancellor  Yroom  says,  "  the  strict  rule 
is  this,  that  the  party  who  comes  into  equity  for  a  specific  per 
formance,  must  come  with  perfect  propriety  of  conduct,  other- 
wise  he  will  be  left  to  his  remedy  at  law.  This  rule  may  be 
considered  too  strict ;  but  I  do  think,  with  lord  Redesdale,  2  Sch. 
and  Lef.  554,  that  considerable  caution  should  be  used  in  de- 
creeing the  specific  performance  of  agreements,  and  that  the  court 
is  bound  to  see  that  it  really  does  the  complete  justice  which  it 
aims  at,  and  which  is  the  ground  of  its  jurisdiction."  The  case 
of  Trower  v.  Newcome,  cited  by  complainant's  counsel  from  3 
Merivale,  704,  is  placed  upon  the  express  ground  that  the  rep- 
resentations made  by  the  printed  particulars  at  the  sale  were  SD 
vaguo  and  indefinite  that  the  court  could  not  take  notice  of  it 
judicially,  and  were  only  sufficient  to  have  put  the  purchaser  on 
inquiry.  That  case  cannot  be  considered  as  affecting  the  current 
of  decisions. 

The  general  principles  which  I  extract  from  the  cases,  are,  that 
on  a  bill  for  a  specific  performance,  the  court  will  grant  its  aid 
or  not,  according  to  the  justice  of  the  case ;  and  that  it  will  nev- 
er interfere  when  the  party  has  practiced  any  fraud,  or  been 
guilty  of  misrepresentation  in  any  material  particular.  In  the 
present  case,  it  is  insisted  that  the  quantity  of  land  was  not  ma- 
terial ;  that  the  purchaser  bought  by  the  lot  or  parcel,  and  not 
by  the  acre ;  and  that,  as  the  land  was  before  his  eyes,  and  sub- 
ject every  day  to  his  observation,  he  could  not  have  been  imposed 
upon.  Tlio  plain  answer  to  all  this  argument  is,  that  it  can  fur- 
nish no  excuse  to  thy  complainant  for  his  misrepresentation.  lie 


JULY  TEEM,  1839.  209 


M.ller  v.  Chetwood  et  al. 


was  bound  to  decide  the  tmth  at  any  rate,  and  not  having  done 
BO,  I  cannot  say,  according  to  the  case  in  Saxton,  that  he 
comes  here  "  with  perfect  propriety  of  conduct."  But  can  it  be 
pretended,  that  in  the  purchase  of  a  vacant  lot,  it  makes  no  dif- 
ference to  the  purchaser  whether  it  contains  six  or  nine  acres  ? 
The  defendant  has  said  in  his  answer,  that  he  never  would  have 
purchased  at  the  price  he  gave,  had  he  not  relied  on  the  quan- 
tity of  nine  acres,  as  stated  by  the  complainant,  and  he  offered  to 
fulfil  his  contract  if  a  rebate  was  made  for  the  deficiency  in  acres. 

It  is  true  the  defendant  saw  the  lot  daily,  but  the  eye  cannot 
tell  the  number  of  acres.  We  may  be  greatly  deceived.  The 
defendant  went  into  this  agreement,  undoubtedly,  with  too  much 
haste;  ho  should  have  surveyed  the  land;  but  still  it  can  furnish 
no  justification  for  the  complainant. 

I  am  constrained  to  say,  in  view  of  the  authorities,  and  the 

sound  principles  on  which  they  proceed,  that  the  circumstances 

of  this  cose  are  such  as  not  to  entitle  the  complainant  to  the  aid 

of  this  court.    I  shall  order  the  bill  dismissed,  but  without  costs. 

Decree  accordingly. 

CITED  t»  Ely.  v;    Perrine,  1  Gfr.   Ch.  4C2 :  Nat.  Iron  Armor.  Co  v. 
Uruner,  4  C.  E.  ffr.  3C8  ;    Plummex  v.  Kepler,  11,  C.  E.  Gr.  482. 


THOMAS  COOK,  junior,  Administrator  of  BATHSHEBA  ALLEN, 
clccoased,  v.  DAXIEL  WILLIAMS  and  JACOB  WOOLLEY,  surviv- 
ing Executors  of  JACOB  WOOLLEY,  deceased,  and  others. 

la  tho  case  of  a  direct  trust,  no  time  bars  the  claim  as  between  the  trustee 
trie]  cfsfui  que  trust. 

B.  A.  executed  a  power  of  attorney  to  J.  W.,  and  thereby  placed  her  whole- 
property  at  tho  disposal  of  tho  attorney,  with  fall  power  to  collect  her 
choses  in  action,  and  to  make  sale  of  her  goods  and  chattels,  and  ont  of  the. 
principal  as  well  as  interest  cf  the  proceeds  to  maintain  an  1  snp  ort  her, 
u  a  special  provision  that  J.  W.  should  account  whenever  required.— 
n  /•./,  that  this  is  a  direct  trust,  to  which  a  pica  of  the  statute  of  limitation* 
is  not  applicable. 

BILL  for  an  account  filed  9th  of  March,  1836.     It  states,  that 
on  the  14tli  of  April,  1807,  Bathsheba  Allen,  the  complainant's 
23 


CASES  DT  CHAHCEEY, 


Adm'r  of  Allen  v.  Ex'rs  of  Woolley  et  al. 


intestate,  by  writing  under  her  hand  and  seal  of  that  date,  ap- 
pointed Jacob  "Woolley,  the  defendants'  testator,  her  attorney,  for 
her  and  in  her  name  and  for  her  use,  to  ask  for,  demand  and 
receive,  of  and  from  all  persons  whatsoever,  all  moneys  then 
clue  and  to  grow  due  in  any  way  whatever,  and  if  necessary  to 
prosecute  for  the  same,  and  to  put  the  same  out  at  interest  on 
such  security  as  he  should  approve  of,  for  her  use  and  support  ; 
and  if  the  interest  should  be  insufficient  for  her  support  and 
maintenance,  then  he  was  authorized  to  make  use  of  so  much 
of  the  principal  as  might  bo  necessary  for  that  purpose.  The 
said  Jacob  Woolley  was  to  provide  for  the  said  Bathsheba  Allen 
suitable  lodging  and  board  out  of  what  should  come  to  his  hands 
of  her  said  estate,  and  to  render  a  just  and  true  account  of  the 
sumo  when  required  ;  and  also  to  do  and  perform  all  other  mat- 
ters and  things  that  might  be  necessary  in  the  premises.  Jacob 
"Woolley  accepted  the  trust,  and  in  performance  of  the  duties 
thereby  imposed  upon  him,  collected  considerable  sums  of  money 
and  placed  them  at  interest,  and  provided  for  the  said  Bathsheba 
Allen  during  her  life,  as  directed  in  the  power  of  attorney.  lie 
died  in  1826,  without  having  made  any  settlement  of  his  ac- 
counts. Bathsheba  Allen  having  died  intestate,  the  complain- 
ant, at  the  special  request  of  one  of  the  executors  of  Woolley, 
on  tho  27th  of  April,  1830,  administered  upon  her  estate,  for 
the  purpose  of  procuring  a  settlement  of  said  trust  account.  A 
large  balance  remained  in  the  hands  of  Woolley  at  his  death, 
which  still  remains  unpaid,  his  executors  refusing  to  account 
therefor.  No  settlement  has  ever  been  made  of  the  account,  ex- 
cept a  pretended  settlement  after  the  death  of  Bathsheba  Allen, 
made  between  one  of  the  executors  of  Jacob  Woolley  and  a 
committee  appointed  by  the  Shrewsbury  meeting  of  Friends,  of 
which  the  said  Bathsheba  Allen  and  Jacob  Woolley,  in  their 
lives,  were  members,  and  upon  which  the  said  Bathsheba  had 
been  a  charge  as  a  poor  member  ;  which  settlement  was  wholly 
without  any  lawful  authority  on  the  part  of  said  committee. 
Throo  sons  of  JacobWoolley,  the  testator,  were  made  defendants, 
upon  a  charge  contained  in  the  bill,  that  by  the  will  of  the  tes- 


TERM,  1839.  211 


Adm'r  of  Allen  v.  Ez'rs  of  Woolley  et  al. 


tator,  in  case  his  personal  estate  should  bo  insufficient  to  pay  his 
debts,  they  were  directed  to  pay  the  deficiency,  and  that  the  tes- 
tator's personal  estate  was  insufficient  to  pay  his  debts.  The  bill 
contains  the  usual  prayer  for  an  account. 

To  this  bill  one  of  the  executors  pleaded  the  statute  of  limita- 
tions ;  the  other  defendants,  in  their  answer,  relied  upon  the  set- 
tlement made  by  the  committee  of  the  Shrewsbury  meeting,  and 
their  receipt  in  full,  as  a  defence  to  the  claim.  The  cause  wan 
heard  at  April  term,  1839,  upon  the  pleadings  and  proofs. 

Randolph  and  Hoisted^  for  complainant 


THE  CHANCELLOR.  This  bill  is  filed  for  an  account.  The 
complainant's  intestate  was  a  member  of  the  society  of  Friends 
at  Shrewsbury,  in  the  county  of  Monmouth ;  and  being  unable 
or  unwilling  to  manage  her  private  affairs,  executed  to  Jacob 
Woolley,  who  was  'clerk  of  the  meeting  and  a  man  of  good 
character  and  standing  in  that  community,  a  power  of  attorney  to 
receive  all  moneys  which  might  then  be  due  her,  or  which  might 
thereafter  become  due,  and  to  maintain  her  out  of  the  same. 

The  original  power  of  attorney  is  made  an  exhibit  in  the  cause, 
and  by  it  the  clear  object  of  the  parties  was,  to  place  all  the  pro- 
perty of  this  woman  in  the  hands  of  Mr.  Woolley,  in  trust,  for 
her  support  and  maintenance.  This  trust  was  accepted  and 
acted  under  by  the  trustee  until  his  death,  which  happened  in  the 
year  1826.  Moneys  were  received  by  him  and  put  out,  and 
Bathsheba  Allen  had  her  support.  The  trustee  was  authorized 
to  use  the  principal  as  well  as  interest,  if  necessary,  to  take 
charge  of  and  sell  her  goods  and  chattels,  and  to  account  when- 
ever required.  After  the  death  of  Mr.  "Woolley,  nothing  further, 
as  it  would  seem,  was  paid  her.  The  complainant  seeks  to 
have  this  trust  settled.  Whether  upon  a  fair  adjustment  any 
thing  is  due  or  not,  must  depend  upon  the  account  to  be  taken, 
and  is  no  part  of  the  present  inquiry. 


212  CASES  DT  CHANCERY, 

Adm'r  of  Allen  v.  Ex'rs  of  Woolley  et  al. 

The  defendants  insist  that  they  are  not  bound  to  account,  for 
two  reasons.  First,  Because,  after  the  death  of  their  testator, 
certain  persons  belonging  to  the  society  of  Friends,  and  upon 
whom  this  woman  had  become  a  charge,  in  the  lifetime  of  Bath- 
Bbcba  Allen  called  upon  the  defendants,  and  compounded  tho 
natter  by  accepting  certain  notes  in  liquidation  of  the  account. 
This  would  seem  to  have  been  nothing  more  than  the  perform- 
ance of  friendly  offices  on  the  part  of  these  gentlemen,  who  de- 
eirecl  to  get  something  in  aid  of  the  support  which  the  society 
was  then  extending  to  this  woman ;  but  they  expressly  say  that 
what  they  did  was  without  any  authority  from  her.  This  can 
have  no  binding  legal  effect,  and  whether  made  in  good  faith  or 
cot  by  the  defendants,  about  which  Borne  question  is  made,  it 
can  make  no  difference.  As  they  had  no  authority  to  act  in  be- 
half of  Bathsheba  Allen,  her  representatives  cannot  be  bound 
by  their  doings. 

The  remaining  reason  set  up  by  the  defendants  against  their 
liability  to  account,  is,  that  the  complainant's  demand  is  barred 
by  the  statute  of  limitations.  This  is  really  the  only  question 
in  the  cause.  As  to  tho  general  principle  on  this  subject,  there 
is  no  difficulty.  It  is  well  settled  that  no  time  can  bar  the  claim 
in  the  case  of  a  direct  trust  as  bet  ween  the  trustee  and  cestui  quo 
trust.  But  whether  this  is  a  trust  of  such  a  character,  has  crea- 
ted the  doubt.  This  whole  subject  will  be  found  fully  discussed 
in  the  New- York  cases,  and  it  will  be  there  seen  how  much  per- 
plexity it  has  given  rise  to.  Decouche  v.  Sa/oetier,  3  John.  Ch. 
Rep.  21 G/  Goodrich  v.  Pemdleton,  Ibid,  387/  Coster  v.  Mur- 
ray, 5  Ibid,  522/  Rome  v.  Bloodgood,  1  Hid,  90. 

After  examining  the  cases,  and  fully  considering  the  import  of 
this  agreement,  I  can  give  it  no  other  construction  than  that  of 
an  express,  direct  trust,  to  which  no  plea  of  tho  Btatute  of  limi- 
tations is  applicable.  The  power  of  attorney  placed  the  whole 
property  of  this  woman  at  the  disposal  of  her  truBcee,  not  only 
her  choses  in  action,  but  her  goods  and  chattels,  with  full  power 
to  collect  in  the  one  and  sell  the  other,  and  out  of  the  proceeds 
(as  well  principal  as  interest)  to  maintain  and  support  her,  and 


JULY  TERM,  1839.  213 

Adm'r  of  Allen  v.  Ex'rs  of  Wool'cy  et  aL 

with  a  special  provision  that  the  trustee  should  account  whenever 
required.  This  is  unlike  a  delegated  power  confided  to  a  person 
for  a  single  or  limited  object ;  it  reached  her  entire  property, 
related  to  her  whole  living,  and  by  its  very  terms  was  a  continu- 
ing fiduciary  engagement. 

There  would  be  no  security,  if  the  statute  might  be  pleaded 
in  a  case  like  this.  It  would  defeat  its  very  object.  But  there  is 
enough  here,  even  if  the  statute  did  apply,  to  take  this  case  out 
of  its  operation.  There  can  be  no  pretence  that  the  statute  be- 
gan to  run  in  the  lifetime  of  Woolley.  He  died  in  1826.  "With- 
in eix  years  prior  to  the  institution  of  this  suit,  the  defendant's 
actually  went  into  a  pretended  settlement  of  this  account,  and 
took  a  receipt  in  full  of  the  same.  One  of  the  defendants,  Daniel 
Williams,  admits  in  his  answer,  that  ho  may  have  told  the  com- 
plainant that  he  believed  there  was  a  balance  due  Bathsheba  Al- 
len from  the  estate  of  Jacob  TVoolley ;  but  being  interested  in  that 
estate  himself,  he  did  not  intend  thereby  to  make  any  acknow- 
ledgment binding  the  estate  of  "Woolley.  In  fact,  this  executor 
refuses,  from  consciencioua  scruples,  to  set  up  the  plea  of  the 
statute  of  limitations  at  all.  There  need  not  be  an  express 
promise  to  pay,  but  it  may  be  inferred  from  an  acknowledgment 
that  the  account  is  opened  and  unsettled.  Every  feature  in  thia 
case,  as  it  appears  to  me,  is  against  the  justice  and  propriety  of 
admitting  this  plea,  and  a  decree  must  be  entered  in  the  usual 
form  for  an  account,  making  to  the  defendants  all  reasonable 
and  proper  allowances. 

Plea  overruled.  Interlocutory  decree  for  an  account  and  refer- 
ence to  a  master. 

CiTKn  in  Mortc,  Ex.  v.  Oliver  Ex.,  1  AfcCar.  262 ;  Coicarl  v.  7Vrt»w 
8  C.  E.  #r.457 ;  MeVlao*  v.  Sheppard,  6;  E.  Or.  19. 


214  CASES  IN  CHANCERY, 


HENEY   J.    SEAMAN   v.  WILLIAM  RIGGINS  and  JOHN   MOIB. 

No  exercise  of  the  power  of  the  court  can  be  plainer,  than  that  of  controlling 
sales  by  public  officers,  on  its  own  process. 

The  practice  <">f  the  English  chancery,  of  opening  sales  upon  an  offer  made 
to  bid  more  for  the  property,  without  any  allegation  of  surprise  or  fraud, 
has  not  been  adopted  in  this  state. 

To  justify  the  interference  of  the  court,  there  must  be  fraud,  mistake,  or  some 
accident,  by  which  the  rights  of  parties  have  been  affected. 

Sale  set  aside  when  the  agoat  of  an  incumbranc  r,  who^e  interests  were  pre- 
judiced by  the  sale,  nnd  who  intended  to  purchase,  was  prevented  fr  m  at- 
tending the  sale  by  accident  and  by  an  unintentional  mistake  of  the  com- 
plainant's solicitor. 

The  discretion  vested  by  la*v  in  the  sheriff  is  a  le^al  discretion,  and  the  court 
will  not  permit  such  an  exercise  of  it  as  shall  work  injustice  and  wrong. 

THIS  case  came  before  the  court  upon  the  petition  of  John 
Moir,  one  of  the  defendants,  to  avoid  a  sale  made  by  the  sheriff 
of  Middlesex,  by  virtue  of  the  execution  issued  in  the  cause,  for 
the  sale  of  mortgaged  premises.  The  petition  was  filed  on  the 
20th  of  March,  1839.  Before  the  filing  of  the  petition,  on  the 
19th  of  February,  1839,  upon  filing  an  affidavit  of  the  agent  of 
the  petitioner,  an  order  was  made  by  the  chancellor,  whereby  it 
was  ordered,  that  the  sheriff  of  the  county  of  Middlesex  should 
deeist  and  refrain  from  executing  or  delivering  any  deed  for  the 
mortgaged  premises,  under  or  by  virtue  of  the  sale  made  by  him, 
until  the  further  order  of  the  court  respecting  the  same.  The 
material  facts  contained  in  the  petition  are  fully  stated  in  the 
opinion  of  the  chancellor.  The  cause  came  on  for  hearing  upon 
the  petition  and  affidavits. 

A.  Whitehead  and  V<mar8daley  for  petitioner. 
Wiltiamson  and  Speer,  contra. 

THE  CHANCELLOB.  This  is  an  application  by  John  Moir,  a 
defendant,  to  set  aside  a  sale  made  under  the  execution  issued 


JULY  TEEM,  1839. 


Seaman   v.  Riggins  and  Moir. 


in  tliis  cause,  -on  the  eighteenth  of  February  last,  by  the  sheriff 
of  the  county  of  Middlesex.  By  the  execution,  the  sheriff  was 
directed  to  sell  the  mortgaged  premises,  and  to  satisfy  out  of  the 
proceeds,  first,  four  thousand  three  hundred  and  fifty  dollars  due 
the  complainant  on  his  mortgage,  with  interests  and  costs;  and 
second,  to  satisfy  John  Moir,  a  defendant,  three  thousand  and 
f  orty-five  dollars  and  forty-five  cents,  the  amount  of  a  second 
mortgage,  with  interests  and  costs.  The  property  was  owned  by 
"\Villiam  Biggins,  the  other  defendant,  and  the  amount  of  these 
t\vo  mortgages  was  to  be  raised  by  the  sale.  It  is  admitted  by 
ell  the  witnesses,  by  Mr.  Travers,  by  the  sheriff,  and  by  the  so- 
licitors for  both  the  parties,  that  the  property  is  worth  the  amount 
to  be  raised  by  the  execution,  as  well  as  that  due  to  Mr.  Moir  as 
that  due  the  xiornplamant  The  -sale  was  first  advertised  for  the 
fourth  of  February,  at  South-  Amboy,  and  was  then  adjourned 
to  Applcgate's  tavern,  at  the  mouth  of  Cheesecakes  creek,  be- 
tween twoaud  and  three  miles  south  of  South-  Amboy.  Mr.  Moir 
constituted  his  solicitor  his  agent  to  attend  the  sale,  and  author- 
ized him  to  bid  up  the  property  to  the  amount  due  the  complain- 
ant and  liimsclf.  On  the  first  day  fixed  for  the  sale,  Mr.  Moir's 
agent  <lid  not  attend,  having  the  promise  of  the  complainant's 
solicitor  that  no  sale  .should  take  place  in  his  absence;  and 
though  a  sale  was  then  pressed,  it  was  postponed  by  the  firm- 
nesg  of  the  complainant's  solicitor,  who  had  given  his  word  that 
none  should  take  place  in  the  absence  of  Mr.  Whitchead,  the 
agent  of  Mr.  Mo  Jr.  The  complainant's  solicitor,  after  the  first 
day  of  sale,  wrote  Mr.  Whitehcad  that  the  sale  was  adjourned  to 
tlic  eighteenth  day  of  February,  at  one  o'clock,  at  the  house  of 
Mr.  Applcby,  about  a  mile  or  a  mile  and  a  half  from  the  ferry 
r.t  South-Amboy.  On  the  day  of  sale,  Mr.  Whitehead,  l>eing 
under  the  impression,  from  inquiries  made,  that  the  place  of 
sale  was  between  South-Amboy  and  New-Brunswick,  and  hav- 
ing further  learned  that  the  steamboat  from  New-  York  to  South- 
Amboy  did  not  stop  at  Elizabeth-Town  Point,  took  the  train  of 
cars  that  pass  through  Newark  about  a  quarter  before  ten  in  the. 
morning,  for  New-Brunswick,  and  from  thence  set  \&\\  in  a  yrfc. 


213  CASES  IN  CHANCERY, 

Seaman   v.  Riggins  and  Moir. 

vat  3  conveyance  to  attend  the  sale.  After  pursuing  Ms  journey 
ivnd  making  inquiries  on  the  road,  he  came  to  a  tavern-house 
belonging  to  a  Mr.  Appleby,  though  not  occupied  by  him,  be- 
tween New-Brunswick  and  South-Amboy.  When  he  arrived 
tlicrc,  he  found  out  by  a  person  who  happened  to  have  been 
present  at  the  time  of  the  adjournment  of  the  sale,  that  the  place 
of  sale  was  at  William  Applegate's  tavern,  on  the  other  side,  of 
tlonth-Amboy,  and  that  he  had  gone  out  of  his  way  some  five  or 
eix  rnilys.  He  then  went  on,  and  arrived  at  the  place  of  sale 
fit  live  minutes  before  two"  o'clock,  and  found  that  the  property 
had  been  sold  to  Mr.  John  Travers,  for  and  in  behalf  of  William 
Higgins,  the  defendant,  for  four  thousand  five  hundred  dollars, 
a  sum  about  sufficient  to  satisfy  the  complainant's  mortgage,  and 
cutting  off  entirely  the  detendant,  John  Moir.  The  sale  was 
fixed  for  one  o'clock,  and  the  property  struck  off  without  any 
other  bidder  than  Mr.  Travers,  at  about  half  past  one.  Under 
this  state  of  facts,  John  Moir  applies  by  petition  to  set  aside  this 
gale,  offering  on  his  part  to  bid  upon  a  resale  the  full  amount 
due  him  and  the  complainant  also.  Burnet,  the  mortgagor  in 
the  mortgage  of  Mr.  Moir,  is  stated  to  be  insolvent ;  and  unless 
the  relief  here  asked  is  granted,  the  money  on  this  second  mort- 
gage must  be  entirely  lost.  No  deed  has  yet  been  executed  by 
(lie  sheriff  to  the  purchaser. 

The  power  of  the  court  to  interfere  in  this  case  is- not  denied. 
It  has  been  frequently  done  in  the  state  of  New- York,  and  in 
lliis  court.  No  exercise  of  the  power  of  the  court  can  be  plainer, 
than  that  of  controlling  sales  by  public  officers  on  its  own  pro- 
cess. Williamson  v.  Dale,  3  John.  C7t.  Rep.  290 ;  Duncan 
end  others  v.  Dodd  and  others,  2  Paiye,  99 ;  Requa,  v.  Red 
and  wife,  Ibid,  339. 

In  this  court,  the  case  of  the  Etfrs  of  Gouvemeur  Morris 
v.  Swartwout  and  others,  was  cited  at  the  bar,  though  not  re- 
ported. The  cases  referred  to  on  the  argument  from  the  English 
court,  on  the  subject  of  the  openings  of  biddings,  though  not 
••ipplieable  to  our  method  of  making  sales,  show  ,a  very  strong 
disposition  to  open  sales  upon  the  single  ground  that  more  can  be 


JULY  TERM,  1839.  217 

Seaman  v.  Biggins  and  Yoir. 

got  for  the  property.  They  open  the  biddings  continually,  upon 
en  offer  made  to  bid  more  for  the  property,  without  any  allega- 
tion of  surprise  or  fraud.  Holding  a  power  over  the  subject, 
they  do  so  for  the  interest  of  the  estate  alone.  These  cases  do 
not  apply  to  sales  made  with  us ;  they  have  never  .been  adopted 
either  in  the  state  of  New- York  or  in  this  state.  To  justify  the 
interference  of  the  court,  there  must  be  a  foundation  laid — either 
fraud  or  mistake  or  some  accident,  by  which  the  rights  of  par- 
tics  have  been  affected. 

In  the  present  case,  I  have  no  doubt  either  as  to  the  power  of 
the  court,  or  its  plain  duty,  to  interpose  and  set  aside  this  sale. 
The  bare  statement  of  the  facts  show,  that  an  accident  on  the 
part  of  the  agent  in  missing  the  road,  and  a  mistake  wholly 
unintentional  in  the  complainant's  solicitor  in  naming  the  house 
at  which  the  sale  was  to  take  place,  have  occasioned  the  whole 
difficulty  ;  and  it  would  be  a  reproach  on  the  administration  of 
justice  if  no  remedy  could  be  afforded.  Had  Mr.  Moir,  or  his 
agent,  neglected  his  business,  there  might  have  been  some  rea- 
son against  interfering ;  but  they  both  have  shown  diligence,  and 
certainly  did  intend  to  be  present  and  to  bid,  and  would  have 
done  so  but  for  the  accidental  occurences  which  have  been  stated. 
I  consider  the  misapprehension  under  which  the  agent  labored, 
and  honestly  so  no  doubt,  as  to  the  situation  of  the  place  where 
the  sale  was  to  take  place,  and  the  wrong  information  given  him 
by  the  complainant's  solicitor,  as  a  sufficient  ground  for  inter- 
ference. Moir  was  not  a  mere  stranger,  who  contemplated  at- 
tending the  sale  as  a  purchaser,  but  a  party  having  a  deep  in- 
terest, and  manifesting  in  all  his  conduct  a  determination  to  be 
present,  and  to  bid  the  amount  due  him.  The  property  was 
worth  the  amount,  and  his  mortgagor  was  insolvent,  he  had 
therefore  every  motive  for  such  a  course. 

But  it  is  said  that  it  is  dangerous  to  interfere  with  sheriff's  sales; 
that  they  have  a  right,  as  public  officers,  to  exercise  a  discretion 
as  to  sales,  and  the  manner  of  conducting  them  ;  and  that,  if 
the  court  will  set  aside  such  sales,  purchasers  will  not  attend.  A 
sheriff  is  a  public  officer,  and  as  such  has  a  certain  discretion 
29 


218  CASES  IN  CHANCEKY, 

Seaman  v.  Riggins  and  Moir. 

entrusted  to  him  by  law,  and  with  that  it  is  not  my  intention  or 
desire  to  interfere ;  that  discretion  must,  however,  be  a  legal  one, 
and  the  court  will  not  permit  such  an  exercise  of  it  as  shall  work 
injustice  and  wrong.  Thus  far  my  opinion  is  formed  from  rea- 
sons wholly  independent  of  the  sheriff ;  and  without  intending 
now  to  charge  on  that  officer  in  this  case  a  designed  fraud,  I  can 
never  be  led  to  think  his  conduct  in  respect  to  this  execution  was 
right.  It  may  have  been,  and  I  incline  to  think  it  was,  more  the 
result  of  indiscretion  than  design.  He  had  a  large  execution  in 
his  hands ;  he  knew  that  the  sale,  made  as  it  was,  would  cut  off 
entirely  the  second  mortgage,  amounting  to  more  than  three 
thousand  dollars  ;  he  knew  that  it  was  the  intention  of  the  per- 
son holding  this  second  mortgage  to  be  represented  at  the  sale  ; 
and  he  knew  the  property  to  be  worth  the  amount  of  both  the 
mortgages.  Under  such  circumstances,  his  plain  duty  was,  ei- 
ther to  adjourn  the  sale,  or  to  have  waited  until  a  later  hour.  In 
the  absence  of  this  party,  to  strike  off  the  property,  in  half  an 
hour,  when  he  had  until  five  o'clock,  more  than  three  hours,  at 
his  disposal,  was  unnecessary  and  unreasonable  haste. 

As  to  the  course  pursued  by  Mr.  Travers,  it  is  very  clear  his 
interest  and  that  of  Mr.  Kiggins,  the  purchaser,  was  one  in  this 
transaction.  Mr.  Kiggins  was  his  relative,  and  probably  has  act- 
ed throughout  with  a  view  to  befriend  Mr.  Travers,  which  he 
had  a  perfect  right  to  do.  One  thing  is  certain  ;  Mr.  Travers 
meant  to  get  this  property  at  as  cheap  a  rate  as  possible,  and 
availed  himself  of  the  opportunity  which  he  considered  present- 
ed itself  of  defeating  this  second  mortgage.  At  the  first  day  fix- 
ed for  the  sale,  after  learning  thai  a  sale  for  the  amount  of  the 
first  mortgage  would  defeat  the  second  entirely,  he  still  pressed 
the  sale  of  the  property,  which  must  then  have  taken  place  but 
for  the  commendable  course  pursued  by  Mr.  Williamson.  Ho 
may  have  excused  this  course  to  himself  upon  the  ground  that 
considerable  improvements  had  been  put  on  this  propertyby  him- 
self and  Mr.  Kiggins,  and  that  without  such  improvements  the 
property  would  not  have  been  worth  the  amount  of  this  second 
mortgage.  This  consideration,  it  cannot  bo  pretended,  should 


JULY  TEEM,  1839.  219 

Seaman  v.  Biggins  and  Moir. 

enter  into  this  question.     Any  improvements  thus  made,  Can 
never  be  set  up  as  a  reason  for  defeating  a  bona  fide  mortgage. 

The  place,  too,  for  the  sale,  was  fixed  by  Mr.  Travers — a  place 
every  way  unfit  for  such  a  sale,  and  only  to  be  excused  for  the 
reason  that  it  was  near  the  premises  to  be  sold. 

The  sale  made  by  the  sheriff  must  be  set  aside,  and  a  new  sale 
made,  upon  a  readvertisement  according  to  law.    Each  party  to 
pay  their  own  costs  on  this  application. 
Sale  set  aside. 

CitBD  »T»  Howel  v.  Sister,  3  Or.  Oh.  270 ;  Marlatt  v.  Warwick,  3  C.  E. 
Or.  123 ;  Kloepping  v.  Stellmacher,  6  G.  E.  Or.  330 ;  Nat.  BTc.  of 
Metropolis  v.  Sprague,  Id.  461 ;  Wetzler  v.  Schaumann,  9.  C.  E.  Or. 
64;  Woodward  v.  Bttllock,  ]2  O.  E.  Or.  513. 


CASES 

ADJUDGED  DT 

THE  COURT  OF  CHANCERY 

OF  TRE  STATE  OF  NEW- JERSEY. 
OCTOBER    TEEM,    1839. 


WILLIAM  BAILEY  and  others  v.  WILLIAM  STILES  and  wife, 
and  others. 

Iii  a  case  of  spoliation  of  a  will,  equity  has  jurisdiction,  and  the  will  may  be 
established  in  ibis  court 

In  ord  r  to  establish  a  will  in  the  court  of  chancery,  all  the  witnesses  to  the 
will,  if  witbiu  tbe  power  or  the  court,  must  be  examined.  But  if  either  of 
the  witnesses  be  dead,  or  insane,  or  without  the  jurisdiction  of  the  court, 
the  will  may  be  established  without  the  evidence  of  such  witnesses. 

Under  Iho  statute  of  New  Jersey,  it  is  requisite,  to  the  due  execution  of  a 
will  to  pass  real  estate,  that  the  testator  sign  his  name  in  the  presence  oi 
t  e  witnesses. 

O.i  a  bill  filed  to  establish  a  will,  under  a  charge  of  spoliation,  it  is  not  neces- 
sary  to  prove  that  the  spoliation  was  committed  by  the  individual  charged  in 
the  bill,  or  by  whom  it  was  committed.  It  is  enough  if  the  fact  of  the  spo. 
Hat  ion  be  established. 

On  a  bill  filed  to  establish  a  will  devising  real  estate,  the  court  may  grant  relief 
either  by  making  an  iuj  nc:ion  perpetual,  restraining  the  defendants  from 
prosecuting  any  suit  to  disturb  the  complainants  in  the  possession  of  theix 
respective  tracts,  or  by  directing  a  releaso  on  the  part  of  the  defend  mts  of 
all  their  light  in  said  lauds  to  be  made  to  tho  complainants,  or  by  a  decroa 


OCTOBER  TEKM,  1839.  221 

Bailey  et  »•!.  v.   Stiles  et  al. 

establishing  the  will  in  all  its  parts.      The  last  course  should  be  a  "opted 
v.  herever  the  contents  of  the  will  can  be  ascertained. 

THE  bill  was  filed  on  the  8tli  of  January,  1834,  by  "William  Bai- 
ley, Mills  Bailey,  Henry  Bailey,  Charles  Bailey,  Ebenezer  Bailey, 
and  Caroline  Bailey  children  of  Benjamin  Bailey,  late  of  the  coun- 
ty of  Morris,  deceased,  against  William  Stiles  and  Delia  his  wife, 
,  Abraham  Bockover,  junior,  and  Sally  Ann  his  wife,  Almira 
Bailey  and  Louisa  Bailey,  in  order  to  establish  the  will  of  the 
said  Benjamin  Bailey.  The  bill  charges,  that  the  said  Benjamin 
Bailey  was,  during  his  life,  and  at  the  time  of  his  death,  seized 
in  fee  of  certain  mills,and  several  tracts  of  land  and  real  estate, 
in  the  township  and  county  of  Morris  ;  and  being  so  seized  there- 
of, and  being  of  sound  and  disposing  mind  and  memory,  the 
said  Benjamin  Bailey,  on  or  about  the  21st  day  of  May,  1S29, 
made  his  last  will  and  testament  in  writing,  and  signed  and  pub- 
lished the  same  in  the  presence  of  three  subscribing  witnesses, 
and  attested  in  the  manner  prescribed  by  law  for  devising  real 
estate ;  by  which  said  will,  the  said  Benjamin  Bailey,  amongst 
other  things,  did  give  and  devise  to  the  complainants,  in  fee 
simple,  all  his  real  estate,  to  the  purport  and  in  manner  follow- 
ing ;  that  is  to  say  :  to  the  said  William  Bailey  he  gave  and  de- 
vised a  certain  grist-mill  and  saw-mill,  with  the  privileges,  and  a 
certain  lot  of  land  called  the  Hamilton  lot,  the  wholo  containing 
fifty -three  acres.  To  the  said  Mills  Bailey  he  gave  and  devised 
a  certain  farm  called  the  Bailey  farm,  in  the  said  township  of 
Morris,  adjoining  Abraham  Bockover  and  others,  containing 
about  ninety  acres ;  and  certain  lots  called  the  Hawkins  lot  and 
the  Sand-spring  lot,  containing  together  about  fifty-nine  acres. 
To  the  said  Henry  Bailey,  a  certain  farm  called  the  Kesbit  farm, 
in  the  township  of  Morris,  containing  about  one  hundred  andfivo 
acres ;  also,  one  equal  undivided  half  of  tho  Swamp-meadow, 
containing  thirty  acres  in  tho  whole,  adjoining  David  Lindsley. 
To  the  said  Charles  Bailey  he  gave  and  devised  a  certain  farm 
called  the  Yanhouten  farm,  containing  about  one  hundred  and 
twenty-eight  acres — it  being  part  of  tho  farm  formerly  Peter 
Sharpenstein's.  To  the  said  Ebenezer  Bailey  he  gave  and  de» 


222  CASES  IN  CHANCERY, 

Bailey  et  al.  v.  Stiles  et  nl. 

vised  the  homestead  farm  where  the  said  Benjamin  Bailey  then 
lived,  containing  about  sixty-five  acres,  and  one  half  of  the  above 
mentioned  Swamp-meadow.  To  Caroline  Bailey  he  gave  and  de- 
vised a  certain  farm  called  the  Glasby  farm,  in  Morris  township, 
containing  sixty  acres,  adjoining  the  said  Kesbit  farm.  And  the 
said  Benjamin  did  further,  in  and  by  his  last  will  and  testament, 
nominate  and  appoint  the  said  William  Bailey  and  Mills  Bailey, 
executors  of  his  said  last  will  and  testament.  That  the  said  Ben- 
jamin Bailey  died  on  the  Gth  of  June,  1833,  without  having  al- 
tered, cancelled  or  revoked  his  said  will,  leaving  the  complainants 
and  Sally  Ann,  wife  of  Abraham  Bockover,  junior,  and  Delia, 
wife  of  "William  Stiles,  his  children,  and  Almira  Bailey  and 
Louisa  Bailey  his  grandchildren,  (the  children  of  his  son,  John 
Bailey,  deceased,)  his  heirs  at  law ;  and  that  the  said  Abraham 
Bockover,  junior,  and  Sally  Ann  his  wife,  William  Stiles,  and 
Delia  his  wife,  Almira  and  Louisa  Bailey,  severally  refuse  to 
join  tho  complainants  in  the  suit,  and  are  therefore  made  defend- 
ants. That  the  will  remained  in  the  possession  of  the  testator,  and 
was  kept,  locked  up  in  a  drawer  of  his  desk  in  his  dwelling-house, 
until  the  day  of  his  death.  That  on  the  day  after  the  funeral  of 
the  eaid  Benjamin  Bailey,  the  complainants,  William  and  Mills 
Bailey,  having  understood  from  their  father  that  they  were  the 
executors  named  in  his  will,  went  to  the  desk  for  the  purpose 
of  getting  tho  will,  when  they  discovered  that  the  lock  of  tho 
desk  had  "been  broken  open,  and  also  the  lock  of  the  drawer  in 
which  the  will  had  been  kept,  and  that  the  will  was  taken  away. 
That  they  had  repeatedly  made  diligent  search  for  the  will  and 
had  not  been  able  to  find  it,  and  that  it  had  never  been  in  the 
possession  or  under  tho  control  of  either  of  them  since  the 
death  of  the  said  Benjamin  Bailey. 

That  the  general  contents  of  the  will  were  known  in  the  fam- 
ily, their  father  having  frequently  spoken  of  them  in  his  life- 
time. That  Delia  Stiles  and  her  husband  had  expressed  thcm- 
eclves  dissatisfied  with  its  contents  and  threatened  to  destroy  it  if 
they  could  get  hold  of  it.  That  on  the  day  of  the  funeral  the  said 
J)clia,  under  pretence  of  sickness,  refused  to  accompany  tho 


OCTOBER  TERM,  1839.  223 

Bai  ey  et  al.  v.  Stiles  et  al. 

family  to  the  funeral,  but  remained  at  the  dwelling-house  of  her 
father,  and  then  and  there,  as  complainants  were  informed  and 
believe,  broke  open  the  desk  and  carried  away  the  will.  That 
the  said  Delia,  by  and  with  the  connivance  of  her  husband,  after 
the  death  of  the  said  Benjamin  Bailey,  surreptitiously  and  clan- 
destinely took  the  said  will,  and  have  either  destroyed  or  do  now 
conceal  and  suppress  the  same,  by  reason  whereof  it  cannot  be 
produced  and  proven  and  recorded  in  such  manner  as  it  other- 
wise would  have  been  under  the  laws  of  this  state. 

That  the  said  Benjamin  Bailey,  at  his  death,  left  sufficient  per- 
sonal estate  for  the  payme*nt  of  his  debts  and  funeral  expenses, 
with  a  considerable  surplus  to  be  disposed  of  according  to  the  di- 
rections of  his  will,  and  that  the  complainants  at  his  death  be- 
came entitled  to  the  several  premises  devised  to  them  respectively 
in  the  said  will,  subject  to  the  dower  of  the  widow  of  the  said 
Benjamin  Bailey,  which  right  of  dower  the  complainants  by 
their  bill  acknowldge  and  profess  their  willingness  at  all  times 
to  set  off  the  same  when  requested.  That  the  complainants,  on 
the  death  of  their  father,  took  possession  of  the  said  several 
tracts  devised  to  them  in  his  will,  and  are  now  in  possession 
thereof. 

The  bill  prays  that  the  said  "William  Stiles  and  Delia  his  wife 
may  be  decreed  to  produce  the  will  of  the  said  Benjamin  Bailey, 
by  them  or  one  of  them  surreptitiously  held,  or  any  other  will 
of  the  said  Benjamin  Bailey  in  their  or  either  of  their  possession, 
custody  or  power ;  or  if  the  will  of  the  said  Benjamin  Bailey  be 
lost,  destroyed  or  suppressed,  that  the  true  contents  thereof  may 
be  ascertained,  proven  or  established,  under  the  order  and  decree 
of  the  court :  that  the  complainants  may  be  decreed  to  hold  the 
several  parcels  of  real  estate  so  devised  to  them,  respectively,  and 
their  title  confirmed  to  them,  their  heirs  and  assigns,  according 
to  the  true  intent  and  meaning  of  the  said,  will ;  that  the  defend- 
ants may  be  decreed  to  execute  and  deli ver  sufficient  deeds  of  re- 
lease of  their  respective  rights  and  claims  to  the  said  lands,  as 
heirs  at  law  of  the  said  Benjamin  Bailey ;  and  that  they  may  be 
perpetually  enjoined  and  restrained  from  setting  up  any  claim  01 


224  CASES  1J*  CHAKERY, 

Bailey  et  al.  v.  Stiles  et  al. 

demand,  or  from  prosecuting  any  action,  as  the  heirs  at  law  of 
the  said  Benjamin  Bailey,  for  the  said  lands  devised  to  the  com- 
plainants, or  any  part  thereof. 

On  filing  the  bill,  an  injunction  was  issued  by  the  advice  of 
Elias  Vanarsdale,  esquire,  one  of  the  masters  of  the  court,  (the 
chancellor,  Yroom,  having  been  of  counsel,  in  the  cause,)  pur- 
suant to  the  prayer  of  the  bill. 

Two  demurrers  were  filed  to  the  bill.  The  first,  a  general 
demurrer,  for  want  of  equity.  The  second,  by  William  Stiles 
and  wife,  assigning  for  cause  of  demurrer,  that  they  could  not 
be  called  upon  to  criminate  themselves.  On  the  llth  of  No- 
vember, 1834,  the  chancellor,  by  and  with  the  advice  of  Elias 
Yanarsdale  esquire,  master,  overruled  the  first  demurrer  with 
costs,  and  allowed  the  second,  which  extends  to  so  much  of  the 
complainants'  bill  as  seeks  a  discovery  from  Stiles  and  wife. 
The  cause  came  on  for  final  hearing  before  chancellor  Penning- 
ton,  upon  the  pleadings  and  proofs,  at  a  special  term  held  in 
Morris-Town,  on  the  8th  of  August,  1839. 

J.  W.  Miller,  and  1.  H.  Williamson,  for  complainants 
S.  Scudder  and  P.  D.  Vroom  for  defendants. 

J.  W.  Miller,  for  complainants,  insisted,  that  the  will  of  Ben- 
jamin Bailey  was,  in  point  of  fact,  duly  executed.  If,  from  the 
whole  evidence,  the  court  is  satisfied  that  the  will  was  signed  in 
the  presence  of  the  witnesses,  it  is  enough,  although  the  attest- 
ing witnesses  should  deny  it.  3  Stark.  Ev.  1692 ;  JKoscoe's 
Eo.  74 ;  1  W.  Black,  365. 

That  the  will  was  not  altered  or  revoked  at  the  testator's 
death.  That  it  was  destroyed  by  Mrs.  Stiles.  That  the  evi- 
dence is  clear  that  the  will  was  destroyed,  and  whether  by  Mrs. 
S.  or  any  other  person,  the  complainants  are  entitled  to  relief. 

That  the  contents  of  the  will  are  sufficiently  proven.  If  a 
paper  is  destroyed  by  the  heirs,  the  rule  in  proving  the  contents 
ia  not  as  strict  as  when  it  is  lost  by  accident.  Toller  on  Etfrs, 


OCTOBER  TEEM,  1839.  225 

Bailey  et  al.  v.  Stiles  et  al. 

70,  71 ;  Burn's  EGG.  Law,  209 ;  2  Eng.  Eccles.  Rep.  182 ; 
2  Campbell's  Rep.  390 ;  1  tfforJfc.  Ev.  354,  353,  n.  0. ;  Lord 
Raym.  731 ;  Saxton,  212  ;  3  Hoisted,  58. 

The  oath  of  the  party,  after  proving  its  existence,  is  evidence 
of  the  loss.  1  Gained  Cases  in  Error,  27 ;  16  Johns.  Rep. 
193 ;  G  Cowan,  377 ;  12  Johns.  Rep.  192 ;  1  Stark.  Ev.  349. 

Complainants  are  entitled  to  relief,  and  that  without  going  to 
law  to  establish  the  will  1  Madd.  Ch.  Prac.  325-6  ;  3  Atkyns, 
359  ;  2  Vcrnon,  380,  561 ;  1  Vesey,  sen.  387 ;  1  P.  Wms.  731 ; 
2  Ibid,  748;  1  John,  Cases,  417. 

In  cases  of  fraud  or  accident,  the  court  will  retain  a  bill  for 
relief.  1  Fonblanque,  12,  15,  in  note. 

I.  II.  Williamson,  for  complainants,  cited  Hobart,  109  ;  Mit- 
ford  on  Pleading,  159  ;  1  RusseWs  Rep.  558 ;  1  Dickens,  32. 

A  witness  abroad  need  not  be  examined  on  commission.  Lord 
Carrington  v.  Payne,  5  Ves.  411 ;  2  Madd.  Ch.  Prac.  440. 

S.  Scudder,  for  defendants,  contra.  The  defendants  do  not 
deny  the  jurisdiction  of  the  court,  but  they  insist  that  here  is  no 
spoliation,  or  suppression,  or  fraud.  There  is  no  proof,  though 
it  is  so  charged  in  the  bill,  that  Mrs.  Styles  ever  threatened  to 
destroy  the  will,  nor  that  she  feigned  sickness.  The  judgment  on 
the  demurrer  shows  that  the  charge  of  spoliation  in  the  bill  was 
improperly  there.  No  inference  against  her  is  to  be  drawn  from 
her  not  answering. 

There  is  no  proof  that  the  will  was  so  executed  as  to  pass  real 
estate.  The  will  must  be  signed  in  the  presence  of  the  witness- 
es. Rev.  Laws,  7,  sec.  2 ;  Den.  ex  dem.  Compton  v.  Mitton, 
7  Hoisted,  70 ;  Den  ex  dem.  MicHe  v.  Matlack,  2  Ilarr.  86. 
Though  the  proof  be  clear  that  the  will  was  destroyed,  yet  if 
it  turns  out  not  to  have  been  executed  according  to  the  statute, 
it  will  avail  nothing  as  to  the  real  estate.  Equity  requires  as 
much,  nay,  more  proof  of  the  execution  of  a  lost  will,  than  is 
required  at  law.  In  equity  all  the  witnesses  to  a  will  must  be 
examined.  Cooper's  E^.  Cases,  136  ;  2  Madd.  Ch.  Prac.  440- 
30 


226  CASES  IK  CHANCERY, 

Bailey  et  al.  v.  Stiles  et  al. 

P.  D.  Vroom,  for  defendants.  The  complainants'  case  is  not 
founded  on  a  lost  paper,  but  is  case  of  spoliation.  This  is  a 
novel  and  rather  an  extraordinary  case.  Yery  few  cases  of  this 
nature  in  the  court  of  chancery  are  to  be  found  in  the  books,  and 
no  case  in  New  Jersey. 

The  complainants  must  make  out  the  f  actum  of  the  execution. 
There  is  prooof  of  a  will,  but  there  is  no  proof  that  there  was  ever 
one  executed  according  to  law  to  pass  real  estate.  Johnson  is  a 
candid  observing  witness,  and  he  must  have"  observed  it  had  it 
been  signed  in  his  presence.  Being  a  discreet  man,  and  a  sub- 
scribing witness,  his  testimony  is  to  be  specially  regarded.  If 
the  will  is  proved,  it  must  be  by  a  by-stander — a  mother,  and 
the  peculiar  friend  of  the  complainants.  The  testimony  of  this 
witness  is  contradictory  and  uncertain.  The  only  two  witnesses 
in  regard  to  the  execution  contradict  each  other.  Can  the  court 
on  such  evidence  establish  the  will  against  the  heir  ? 

It  is  the  rule  of  this  court  that  the  subscribing  witnesses  must 
all  be  produced.  In  a  doubtful  case  will  not  the  court  require 
the  complainants  to  examine  the  witness  in  Ohio,  even  though 
it  might  not  be  conceded  as  a  universal  rule  that  all  the  witnesses 
must  be  examined  ? 

It  is  not  proved  clearly  that  the  will  was  in  existence  at  the 
testator's  death.  The  court  must  say  whether  the  will  was  taken 
away  by  the  testator  in  his  life-time,  or  by  Mrs.  Stiles.  The  bill 
fails  unless  the  charge  against  Mrs.  Stiles  is  made  out.  It  is  not 
a  case  for  the  mere  loss  of  the  paper.  The  loss  of  a  paper  is  by 
mistake — the  spoliation  is  through  fraud. 

The  complainants  have  failed  to  make  out  the  contents  of  the 
will.  The  paper  found  among  the  papers  of  David  Thompson 
js  not  a  copy  of  the  will,  but  turns  out  to  be  a  mere  memoran- 
dum. The  will  must  be  proved.  What  decree  will  the  court 
make  ?  The  prayer  of  the  bill  is  as  to  the  real  estate  alone. 
There  is  seven  thousand  dollars  of  the  personal  estate,  what  is 
to  be  done  with  that  ?  Can  a  will  be  established  for  part  ?  A 
new  will  is  not  to  be  made  for  the  testator,  bnt  hia  will  is 
to  be  established ;  not  a  part  of  the  will,  but  the  entire  one. 


OCTOBER  TERM,  1839.  227 

Bailey  et  al.  v   Stiles  et  al. 

I.  II.  Williamson,  in  reply.  The  complainants  are  willing 
to  stand  or  fall  by  the  charge  of  spoliation.  There  is  no  doubt 
that  a  will  of  some  kind  was  made  by  the  testator ;  this  is  agreed 
to.  "Was  the  will  executed  in  such  manner  as  to  pass  real  estate  ? 
It  is  only  required  that  the  subscribing  witnesses  should  have  been 
in  the  room  and  might  have  seen  the  will  executed.  All  that  Mr. 
Johnson  says  is,  that  he  has  no  recollection  of  seeing  the  testator 
sign  the  will.  He  does  not  say  that  ho  did  not  sign  it  in  his 
presence.  He  says  it  may  have  been  signed  and  I  not  remember 
it.  Mrs.  Bailey,  the  widow,  fully  proves  the  signing.  The  court 
is  bound  to  reconcile  the  testimony  of  witnesses.  The  testimony 
of  an  affirmative  witness  outweighs  that  of  many  negative  ones. 

Must  all  the  subscribing  witnesses  to  the  will  bo  examined  ? 
Cannot  the  legal  formalities  be  proved  by  other  witnesses  until 
the  testamentary  ones  arc-  called  ?  At  law  it  is  clear  you  need 
not  bring  all  the  witnesses  into  court ;  why  should  a  different  rule 
exist  in  equity  ?  Cooper  v.  Hlundcll,  Coop,  Eq.  Ca.  138 ;  same 
case,  10  Ves.,  505. 

The  way  of  proving  a  will  in  a  case  of  spoliation  must  not  be 
wholly  blocked  up.  5  Vescy,  40-i;  9  Vesey,  381. 

A  will  may  bo  proved  against  the  testimony  of  the  instrumen- 
tal witnesses.  Chase  v.  Lincoln,  3  Mass.  236. 

If  the  rule  is  inflexible  that  all  the  witnesses  must  be  exam- 
ined, this  court  will  let  the  cciso  stand  over  until  a  commission 
can  be  returned,  or  order  an  issuo  of  devisavit  vcl  non.  Sea- 
ton's  Forms  of  Decrees,  82. 

If  there  has  been  cpoliation,  although  not  by  Mrs.  Stiles,  the 
complainants  arc  entitled  to  relief.  Ii'  defendants  do  not  answer 
then  one  witness  is  enough.  The  answer  is  evasive. 

O 

As  to  the  contents  of  the  will ;  a  will  must  bo  established  to 
the  extent  proved,  even  if  you  cannot  prove  tho  whole  of  it. 
There  is  nothing  more  than  an  application  to  the  court  to  cstsl)- 
lish  this  will  so  far  as  relates  to  the  devises.  The  personal  estate 
was  to  be  equally  divided.  The  court  will  not  refuse  aid  to  de- 
visees, merely  because  the  whole  of  tho  will  cannot  bo  proved. 
ZVernon,  216,  441. 


228  CASES  IN  CHANCERY, 

Bailey  et  al.  v.  Stiles  et  al. 

The  court  need  not  establish  the  will,  but  may  only  continue 
and  make  perpetual  the  injunction  against  disturbing  the  devisees. 
The  will  need  not  be  established,  but  only  the  rights  of  the  com- 
plainants. If  only  the  complainants'  rights  are  established,  any 
other  party  may  question  the  disposition  of  the  personal  estate. 
Section's  Decrees,  63. 

THE  CHANCELLOR.  This  is  an  important  cause.  The 
amount  of  property  involved  is  large,  the  question  arising  new 
with  us,  and  some  of  the  charges  made  against  one  of  the  de-  * 
fondants  of  a  very  serious  and  distressing  character.  My  desire 
to  come  to  a  just  and  sonnd  conclusion,  has  been  in  due  propor- 
tion to  the  magnitude  of  the  case. 

The  complainants  are  children  (five  sons  and  one  daughter) 
of  Benjamin  Bailey,  deceased,  late  of  the  county  of  Morris,  in 
this  state.  They  allege,  that  their  father  at  the  time  of  his  death 
was  seized  in  fee  of  a  large  real  estate,  which  he  devised  to  them 
i;i  the  manner  therein  stated,  by  his  last  will  and  testament,  duly 
executed  in  the  form  prescribed  by  the  laws  of  this  state.  The 
v/ill  is  said  to  bear  date  on  the  twenty-first  of  May,  eighteen 
hundred  and  twenty-nine,  and  the  testator  to  have  died  on  the 
ei'ith  of  Jun^  eighteen  hundred  and  thirty-three.  They  further 
allege,  that  their  father  kept  his  will  locked  up  in  a  desk  in  his 
own  house  until  his  death,  immediately  after  which  the  lock  of 
the  desk  and  of  the  drawer  in  which  the  will  was  kept  was  bro- 
ken open,  and  the  will  taken  out  and  carried  away.  They  further 
allege,  that  at  the  funeral  of  their  father,  their  sister  Delia  Stiles, 
under  pretence  of  sickness,  refused  to  go  to  the  grave,  but  re- 
mained at  the  dwelling,  and  then  and  there,  as  they  are  inform- 
ed and  believe,  broke  open  the  said  desk ;  and  that  their  said 
sister,  with  the  connivance  of  her  husband,  William  Stiles,  in 
this  manner  clandestinely  took  the  said  will,  and  has  either  de- 
stroyed or  suppressed  and  conceals  the  same.  The  bill,  after 
stating  this  charge  of  spoliation,  prays  that  the  defendants  may 
be  compelled  to  produce  to  this  court  the  said  last  will  and  testa- 
ment, or  that  the  true  contents  thereof,  in  case  it  be  lost,  destroy- 


OCTOBER  TERM,  1889.  229 


Bailey  ct  al.  v.  Stiles  et  1 1. 


cd  or  suppressed,  may  be  ascertained  and  established  by  this 
couit ;  or,  that  tlie  complainants  may  be  decreed  to  hold  the  seve- 
ral tracts  of  laud  devised  to  them  according  to  the  will,  that  the 
defendants  may  be  compelled  to  execute  to  them  releases  of  all 
their  right  or  claim  to  the  same,  and  be  perpetually  enjoined 
from  setting  up  any  further  claim  or  demand  for  the  said  lands, 
or  from  prosecuting  any  action  for  the  recovery  thereof,  and  that 
the  title  of  the  complainants  to  the  said  lands  may  be  quieted 
and  put  at  rest. 

The  defendants  are  two  of  the  testator's  daughters  with  their 
husbands,  and  the  children  of  a  deceased  son,  to  whom  the  tes- 
tator gave  no  part  of  his  real  estate.  These  defendants  met  this 
case  in  the  first  instance  by  two  demurrers,  one  of  them  denying 
the  whole  equity  of  the  bill,  and  the  other  as  to  so  much  of  the 
bill  as  charged  upon  Mrs.  Stiles  the  spoliation  of  the  will,  claim- 
ing the  protection  of  the  court  as  to  Mr.  and  Mrs.  Stiles  from  an- 
swering, on  the  ground  that  such  answer  might  criminate  them. 
The  first  demurrer  was  overruled  by  the  court,  and  the  last  sus- 
tained so  far  as  relates  to  Mr.  and  Mrs.  Stiles.  The  effect  of  this 
decision  was  to  establish  in  this  very  case  the  jurisdiction  of  the 
court  upon  the  facts  stated  in  the  bill,  so  far  as  those  facts  were 
well  pleaded,  and  to  exempt  Mr.  and  Mrs.  Stiles  from  answering 
so  far  as  they  are  charged  criminaliter,  and  that  without  preju- 
dice. The  question  of  jurisdiction  was  considered  on  the  present 
argument,  and  properly  so,  as  having  been  settled  by  the  decis- 
ion on  the  first  demurrer,  which  brought  up  the  whole  case  made 
by  the  bill  for  discussion  and  settlement.  In  a  case  of  spoliation 
the  power  of  this  court  is  too  well  settled  to  admit  of  further 
question.  1  Jfadd.  Ch.  Prac.  325-6  ;  3  Athjns,  359 ;  2  Vcr- 
noii,  380,  561;  1  Vesey,  sen.  387;  1  P.  Wms.  731;  2  Hid, 
748 ;  2  Story's  Eq.  671. 

Taking  the  power  of  the  court  to  be  established,  I  proceed  to 
examine  and  see  how  far  the  complainants  have  sustained  them- 
selves by  evidence. 

1.  The  first  question,  and  the  one  which  lies  at  the  founda- 
tion of  all  the  rest,  is,  whether  Benjamin  Bailey  left  at  his  death 


2CO  CASES  IN  CHANCERY, 


Bailcv  et  al.  v.  Stiles  et  al. 


any  last  will  and  testament.  I  do  not  mean  here  to  speak  of  tho 
mode  of  execution,  but  did  he  leave  any  instrument  purporting 
to  be  his  will  ?  That  he  made  a  will  in  the  year  eighteen  hun- 
dred and  twenty-nine,  there  can  be  no  doubt ;  it  has  not  been 
controverted  by  any  person.  John  Johnson  testified,  that  he  wit- 
nessed the  testator's  will  a  few  years  before  his  death.  It  was 
drawn  by  David  Thompson,  witnesssed  by  him,  by  Mr.  Johnson 
the  deponent,  and  by  Ephraim  M.  High.  William  Bailey,  one 
of  the  complainants,  and  Mrs.  Bailey,  the  testator's  widow,  he 
says,  were  present.  Mrs.  Bailey  the  widow,  (who  has  in  le- 
gal form  relinquished  all  claim  under  the  will  and  elected  to 
take  her  dower  at  common  law,)  confirms  the  statements  made 
by  Mr.  Johnson  as  to  the  execution  of  the  will,  and  agree?  with 
him  in  most  of  the  attendant  circumstances.  The  answer  of 
the  defendants  admits,  that  in  or  about  the  year  eighteen  hun- 
dred and  twenty-nine,  without  meaning  to  be  particular  as  to 
time,  they  heard  that  the  testator  had  made  a  will.  There  is  no 
evidence  that  this  will  was  ever  cancelled,  or  in  any  way  modi- 
fied. Mrs.  Bailey  says,  the  testator  kept  his  will  in  a  desk  in  the 
entry;  it  was  the  same  desk  in  which  he  kept  his  most  valuable 
papers,  such  as  bonds  and  notes.  She  says  she  saw  the  will  in 
her  husband's  last  sickness.  He  requested  that  it  should  be 
Drought  to  him,  and  proposed  that  his  son  "William  should  tako 
it  home  with  him,  and  actually  gave  it  to  him  for  that  purpose, 
out  afterwards  changed  his  mind,  saying  it  might  not  look  well 
to  take  it  out  of  the  house,  and  it  was  returned  to  the  desk 
jgain.  This  was  only  three  or  four  days  before  the  testator's 
Jeath.  He  died  on  Friday,  and  on  Saturday,  the  day  after,  tli3 
tridow  says  she  saw  tho  will.  This  was  the  day  of  tho  funeral. 
On  Monday  afterwards  she  went  to  the  desk  and  found  it  broken 
jpen.  The  lock  had  been  pried  off.  There  were  marks  on  it 
showing  that  force  had  been  applied ;  and  the  will  was  gone, 
»nd  she  has  never  seen  it  since.  Upon  this  evidence  it  is  suffi- 
ciently proved  that  there  was  a  will  in  existence  at  the  testator's 
leath. 
2.  The  B«cond,  and  by  far  the  more  difficult  question  to  settle, 


OCTOBER  TERM,  1839.  231 

Bailey  etal  v.  Stiles  et  al. 

relates  to  ikefactum  of  the  execution  of  this  will.  The  defend- 
ants insist,  that  even  if  a  will  is  proved  to  have  been  made,  yet 
there  is  no  sufficient  proof  that  it  was  executed  in  such  a  manner 
as  to  pass  real  estate  under  the  laws  of  this  state,  and  especially 
under  the  construction  placed  upon  those  laws  by  the  supreme 
court.  They  deny  that  the  testator  signed  the  will  in  the  pres- 
ence of  the  subscribing  witnesses.  The  witnesses,  it  will  be 
remembered,  are  David  Thompson,  who  drew  the  will  and  who 
is  dead,  Ephraim  M.  High,  who  has  removed  to  the  state  of 
Ohio,  out  of  the  jurisdiction  of  this  court,  and  John  Johnson. 
Mr.  Johnson  is  the  only  subscribing  witness  who  has  been  sworn, 
and  before  proceeding  further  it  will  be  proper  to  dispose  of  an 
objection  taken  by  the  defendants  to  any  relief  being  afforded  the 
complainants  until  they  shall  have  examined  all  the  subscribing 
witnesses.  It  is  contended  that  it  is  a  rule  of  this  court,  in  all 
cases,  that  all  the  subscribing  witnesses  must  be  examined  on 
proving  the  will  against  the  heir.  To  maintain  this  position, 
the  case  of  Booile  v.  Blundell,  in  Cooper's  Equity  Hep.  136, 
is  much  relied  on.  That  was  an  issue  of  devisavit  vel  non, 
directed  by  the  court.  After  examining  one  of  the  subscribing 
witnesses,  the  complainant  rested  his  case,  saying  to  the  defend- 
ant that  he  would  make  him  a  present  of  the  other  two.  Upon 
a  motion  for  a  new  trial,  the  chancellor  declared  it  to  be  necessa- 
ry that  the  complainant  should  call  all  the  subscribing  witnesses 
before  a  will  could  be  established  in  that  court.  These  witness- 
es he  considered  not  as  the  witnesses  of  either  party,  but  of  the 
court.  The  witnesses  appear  to  have  all  been  in  court,  and  in 
such  case,  or  what  is  the  same  thing,  when  they  are  within  the 
power  of  the  court,  they  must  all  be  examined.  I  have  no  doubt 
that  this  is  the  settled  rule.  But  there  are  exceptions,  and  must 
necessarily  bo,  to  the  rule  requiring  tho  production  of  all  the  wit- 
nesses ;  and  it  so  happens,  that  the  two  witnesses  not  produced 
in  this  case,  come  within  the  exceptions  made  in  the  books  to  the 
general  rule ;  one  died,  and  the  other  removed  beyond  the  juris- 
diction of  the  court.  The  case  first  referred  to  will  be  found  re- 
ported in  19  Vesey,  505,  and  these  very  exceptions  to  the  gene- 


232  CASES  IN  CHANCERY, 

Bailey  et  al.  v.  Stibs  et  al. 

ral  rule  are  there  stated.  See  also  /Seaton's  Decrees,  62  ;  Lord 
Carrington  v.  Payne,  5  Vesey,  411 ;  Billing  v.  Brooksbank, 
19  Yesey,  501 ;  Chase  v.  Lincoln,  3  Mass.  236.  The  like  ex- 
ception to  the  rule  obtains  where  the  witness  becomes  insane,  or 
has  not  been  heard  of  for  many  years  and  cannot  be  found.  In 
the  case  of  a  witness  being  out  of  the  jurisdiction  of  the  court, 
I  am  aware  there  have  been  different  opinions  entertained  in  dif- 
ferent courts,  but  I  think  the  true  rule  is  to  consider  it  as  coming 
within  the  exceptions.  Such,  as  it  appears  to  me,  is  the  weight 
of  authority,  and  it  is  more  consistent  with  principle.  "Wliat 
power  has  the  complainant  over  a  witness  in  another  state  ?  He 
cannot  compel  his  attendance  either  before  this  court  or  before  a 
commissioner  in  the  state  where  he  may  happen  to  reside.  In 
the  case  cited  from  5  Yesey,  it  was  made  a  point  whether  a  com- 
mission should  not  be  sent  abroad  to  examine  the  witness,  and 
it  was  held  sufficient  to  prove  his  handwriting.  Had  the  de- 
fendants desired  so  to  do,  they  would  have  been  entitled  to  take 
out  a  commission  to  examine  this  witness,  but  neither  party  was 
bound  to  do  so  if  they  were  willing  to  submit  the  case  upon  tho 
other  evidence.  We  must,  then,  see  how  the  proof  stands  as 
taken. 

John  Johnson,  a  subscribing  witness,  testifies,  that  he  was 
present  at  the  execution  of  the  will.  He  was  sent  for  for  that 
purpose.  "William  Bailey,  the  son,  Mrs.  Bailey,  the  widow,  Da- 
vid Thompson,  Ephraim  M.  High,  and  the  witness,  were  present. 
The  testator  put  his  hand  on  the  seal  and  acknowledged  that  he 
eigned,  sealed  and  published  it  as  his  last  will  and  testament. 
He  was  of  sound  mind.  Mr.  Thompson  and  the  deponent  signed 
their  names,  and  Mr.  High  made  his  mark,  as  witnesses,  in  the 
presence  of  the  testator.  Ho  saw  Mr.  Thompson  sign  his  name 
and  Mr.  High  make  his  mark.  As  to  the  testator's  signing  the 
will  in  the  presence  of  the  witnesses,  the  deponent  answers,  he 
does  not  recollect  seeing  him  sign  his  name.  He  thinks  the  tes- 
tator's name  was  signed  to  the  will  when  he  first  saw  it.  This 
witness  gives  a  very  rational  account  of  the  whole  matter,  and. 
makes  out  a  complete  execution  of  the  instrument,  except  as  to 


OCTOBER  TERM,  1839.  233 

Bailey  et.  al.  v.  Stiles  et  al. 

the  signing  by  the  testator,  and  upon  that  point  lie  declares  he 
hiis  no  recollection  of  seeing  him  sign  his  name.  This  is  the 
most  difficult  part  of  the  case.  The  decision  on  this  subject  in  the 
supreme  court,  requiring  the  testator  to  sign  his  name  in  the 
presence  of  the  witnesses,  I  shall  adhere  to  as  the  law  of  this 
court.  The  question  belongs  peculiarly  to  that  court,  and  its  de- 
cision must  control  this.  This  witness,  therefore,  fails  to  make 
out  an  essential  part  of  the  proof,  and  without  further  evidence 
the  case  must  fail. 

But  we  have  another  witness  who  was  present,  although  not 
a  subscribing  one,  and  her  evidence  becomes  very  material.  This 
witness  is  the  widow,  Mrs.  Deborah  Bailey.  She  is  the  mother  of 
all  these  children,  and  she  has  released  all  her  claim  under  the 
will ;  she  is  therefore  a  competent  witness,  and  for  aught  that 
appears  worthy  of  credit.  She  recollects  the  circumstance  of  her 
husband's  signing  the  will.  She  was  sitting  behind  him,  hold- 
ing him  up  in  bed  at  the  time  he  signed  it.  At  the  time  he  wroto 
his  name  to  the  will,  she  swears  positively  that  the  subscribing 
witnesses  were  present.  She  also  proves  the  reading  of  the  will 
to  the  testator,  before  the  witnesses  came  in. 

These  two  witnesses,  Mr.  Johnson  and  Mrs.  Bailey,  it  is  man- 
ifest from  the  depositions,  have  been  pressed  by  counsel  on  their 
examinations  very  much  on  this  point.  It  will  be  seen  that  they 
have  placed  their  answers  to  this  part  of  the  case  in  different 
shapes,  but  from  a  careful  and  fair  view  of  it  all  I  can  give  to  it 
no  other  meaning  than  this :  Johnson  answers  negatively  that 
he  does  not  recollect  seeing  the  testator  sign  it,  and  Mrs.  Bailey 
Bwears  affirmatively  that  he  did  sign  it  in  the  presence  of  tho 
witnesses.  The  rule  of  law  is  clear  in  such  case  ;  the  affirma- 
tive witness  must  prevail.  There  is  one  consideration  hero  •wor- 
thy of  being  noticed.  The  will  was  executed  in  the  year  eighteen 
hundred  and  twenty-nine,  and  the  witnesses  were  examined  iu 
eighteen  hundred  and  thirty-five.  A  period  of  six  years  had 
passed,  and  it  would  be  no  very  strange  occurrence  that  even  a 
subscribing  witness  should  not  remember  every  thing  that  took 
place  at  the  time  of  the  execution.  Mr.  Johnson,  although  evi- 
31 


234:  OASES  IN  CHANCEKY, 

Bailey  et  aL  v.  Stiles  et  al. 

dently  a  very  accurate  witness,  and,  judging  from  his  testimony, 
a  cautious  and  just  man,  had  no  interest  or  feeling  in  this  trans- 
action. The  wife  of  the  testator  was  his  nurse,  was  present,  held 
him  up  in  the  bed,  and  was  greatly  interested,  no  doubt,  at  the 
time,  in  all  that  was  passing.  This  witness  not  only  swears  that 
her  husband  signed  the  will  in  the  presence  of  the  witnesses,  but 
states  all  the  circumstances.  While  the  proof  is  not  as  full  on 
this  point  as  I  could  have  wished,  yet  by  the  rules  of  law  as  well 
as  from  the  whole  tenor  of  the  evidence.  I  must  declare  the 
proof  in  the  case  to  be,  that  the  will  was  signed  by  the  testator 
in  the  presence  of  the  witnesses. 

The  next  matter  relates  to  the  fact  of  spoliation.  "Was  this 
•will  in  fact,  as  charged,  fraudulently  taken  away  ?  That  there 
was  a  will  made,  and  that  it  was  kept  by  the  testator  in  a  desk 
in  his  house,  is  clear.  The  widow  swears  that  it  was  in  the  desk 
during  her  husband's  last  sickness.  Only  three  or  four  days  be- 
fore his  daath  he  requested  to  have  it,  and  she  got  the  key  and 
her  son  William  went  and  got  the  will  and  brought  it  to  his 
father.  He  then  told  William  to  take  it  home  with  him  and 
keep  it.  As  William  was  going  out  of  the  door  he  changed  his 
mind,  and  told  him  it  would  not  look  well  to  have  it  taken  out 
of  the  house,  and  desired  him  to  put  it  back  again.  She  also 
cwears  that  she'  saw  the  will  again  in  the  desk  the  day  after  her 
husband- s  death.  This  evidence  is  uncontradicted,  and  there  u 
no  proof  in  the  whole  case  of  any  cancellation  by  the  testator, 
or  that  he  ever  had  any  intention  of  so  doing.  This  was  on 
Saturday,  the  very  day  the  testator  was  buried.  On  Monday 
morning  thereafter  the  will  was  gone,  and  all  the  witnesses  agree 
that  there  was  on  the  desk  marks  of  its  having  been  broken  open. 
The  charge  is,  that  Mrs.  Stiles,  one  of  the  daughters,  for  whom 
a  small  provision  only  was  mado  by  the  will,  while  the  family 
had  gone  down  to  the  grave  to  bury  her  father,  perpetrated  tho 
act.  This  is  a  serious  charge,  and  should  be  sustained  by  the 
clearest  evidence  before  it  can  be  believed.  The  mind  revolts  at 
eo  shocking  a  transaction.  She  did  not  go  to  the  grave ;  and 
one  witness  only,  Ira  P.  Goble,  is  brought  to  make  out  the 


OCTOBER  TERM:,  isso.  235 

Bailey  t-t  al.  v.  Stiles  ct  al. 

charge.  lie  swears  that  while  the  family  and  friends  went  to  the 
grave  he  was  engaged  in  carrying  chairs  up  stairs,  and  while 
standing  at  the  head  of  the  stairs  ho  saw  this  daughter,  with  a 
trowel,  break  open  the  desk  and  take  out  a  paper.     I  do  not 
know  this  witness,  nor  has  his  general  character  been  questioned 
in  tho  evidence  ;  but  he  stands  alone,  and  there  are  many  grave 
considerations  that  enter  into  the  question,  so  far  as  the  court  is 
concerned,  in  founding  their  judgment  upon  his  evidence.     lie 
may  indeed  speak  the  truth,  and  yet  he  may  be  so  placed  by  his 
own  conduct,  and  by  the  attendant  circumstances,  as  to  forbid 
acting  upon  his  statement.     The  character  of  the  charge,  tho 
time  when  the  transaction  is  alleged  to  have  taken  place,  his  in- 
discretions, if  nothing  more,  in  his  conversations  with  others  re- 
specting it,  arc  all  open  and  must  be  duly  weighed  and  consider- 
ed.    To  stamp  with  infamy  the  reputation  of  a  party,  with  the 
possibility  of  her  innocence,  would  be  a  painful  reflection.  There 
is  much  evidence  going  to  show,  that  in  the  position  in  which  ho 
stood  on  the  stairs  the  witness  could  not  have  seen  what  lie 
stated  he  did  see.     By  varying  tho  position  a  little,  other  wit- 
nesses declare  that  he  could  have  seen.     One  witness,  Nancy 
Conway,   swears  that  she  remained  at  tho  house  while  the 
mourners  went  to  the  grave,  and  she  saw  nothing  of  the  trans- 
action ;  and  yet  it  is  quite  strange  that  she  has  no  recollection  of 
seeing  G  oble  there  at  that  time  at  all.     Another  witness,  Stephen 
Gucrin,  swears  that  he  had  a  conversation  with  Goble,  and  ask- 
ed him  if  he  had  seen  Mrs.  Stiles  at  the  desk  at  the  time  of  tho 
f  uneral,to  which  Goble  replied  he  had  not.  Guerin  then  told  him 
what  he  had  heard  he  had  said  in  the  neighborhood  about  Mrs. 
Stiles  taking  the  will.  lie  said  it  was  a  false  report ;  that  he  had 
said  nothing  about  it,  and  knew  nothing  about  it.     Another  wit- 
ness, Samuel  C.  Crowell,  says  he  spoke  to  Goble  about  Mrs.  Stiles 
breaking  open  the  desk,  and  about  what  he  had  heard  he  said 
she  had  done.     Goble  said  all  he  knew  about  it  was  of  no  conse- 
quence.    Afterwards  he  told  Crowell  he  knew  no  more  about  it 
than  he  did. 

Upon  such  a  state  of  facts,  I  will  not  say  that  Mrs.  Stiles  car- 


23G  CASES  IN  CHANCERY. 

Bailey  et  al.  v.  Stiles  et  al. 

ricd  away  this  will.  The  evidence  is  not  satisfactory.  But  I  do 
not  consider  it  necessary,  in  this  case,  that  I  should  be  able  to 
designate  the  person  who  took  away  this  will,  if  it  satisfactorily 
appears  that  it  has  been  carried  away  fraudulently  by  any  per- 
son. I  have  no  doubt,  and  can  have  none  after  the  evidence  of 
Mrs.  Bailey,  that  a  spoliation  has  taken  place.  The  will  was  in 
the  desk  after  the  testator's  death ;  it  is  now  gone,  and  marks  of 
violence  are  on  the  desk,  showing  the  lock  to  have  been  broken 
open.  It  would  be  a  strange  failure  in  the  administration  of  jus- 
tice, if  the  devisees  under  a  will  should  lose  their  estate  when  it 
was  clear  that  a  will  had  been  carried  off,  from  the  mere  fact  that 
they  could  not  detect  the  robber. 

The  only  remaining  point  is  to  ascertain  the  contents  of  the 
will.  Here,  I  must  confess,  there  has  appeared  less  difficulty  on 
investigation  than  I  feared  at  the  time  of  the  argument.  The 
testator  had  five  sons  and  three  daughters  living  at  his  death, 
cud  two  grandchildren,  who  were  the  objects  of  his  bounty. 
These  sons  were  men  approaching  the  middle  of  life.  The 
eldest  was  forty  years  of  age.  They  all  labored  under  their  fa- 
ther, and  he  took  all  the  profits.  They  all  lived  at  horn  e  except 
"William.  The  testator  was  also  the  owner  of  several  distinct 
farms  and  places  known  by  certain  names.  Mrs.  Bailey  says 
she  heard  the  will  read  by  Mr.  Thompson  to  her  husband,  and 
she  recollects  that  he  gave  to  William  the  grist-mill,  saw-mill,  and 
the  Hamilton  lot.  To  Henry  he  gave  the  Kesbit  farm  and  half 
the  Swamp-meadow.  To  Mills  he  gave  the  old  Bailey  farm,  the 
Hawkins  lot,  and  the  Sand-spring  lot.  To  Charles  he  gave  the 
Yanhouten  place.  To  Ebenezer  he  gave  the  homestead  and  half 
the  Swamp-meadow.  To  Caroline  he  gave  the  Glasby  farm  and 
one  hundred  dollars.  To  Mrs.  Stiles  and  Mrs.  Bockover,  four 
hundred  dollars  each,  and  a  legacy  of  one  hundred  and  fifty 
dollars  to  tho  two  daughters  of  her  deceased  son  John, 

John  Conway  testifies,  that  ho  was  a  neighbor  of  the  testa- 
tor, and  had  a  conversation  with  him  about  a  month  bofore  his 
death  in  relation  to  his  will.  He  told  him  that  he  had  xnodo  .1 
will,  arid  went  on  and  specified  the  different  parcels  that  1\*  h\d 


OCTOBER  TERM,  18CO.  237 


et  al.  v.  Stiles  et  al. 


given  the  several  cliildren,  precisely  according  to  the  above 
statement  of  Mrs.  Bailey. 

But  there  is  far  more  certain  evidence  than  even  this  of  the 
contents  of  the  "will.  David  Thompson,  who  drew  the  will,  it 
appears  from  Mrs.  Bailey's  evidence,  wroto  two  papers  as  shc> 
thinks,  and  took  the  first  one  he  drew  home  with  him.  He  said 
it  was  customary  to  do  so,  for  fear  one  might  be  destroyed.  Mr. 
Thompson  is  dead,  and  his  brother  Stephen  Thompson,  who  is 
his  executor,  has  produced  a  paper,  which  lie  swears  he  found 
among  his  brother's  papers,  which  is  made  an  exhibit,  and  is 
marked  Exhibit  M.  1,  on  the  part  of  the  complainants.  This 
paper,  and  the  endorsement  upon  it,  are  proved  to  be  in  tho 
handwriting  of  David  Thompson  ;  and  by  it  we  find  the  very 
same  disposition  made  by  the  testator  of  his  property,  as  stated 
in  the  evidence  of  Mrs.  Bailey  and  of  Mr.  Conway.  On  this  pa- 
per is  this  memorandum,  in  David  Thompson's  handwriting  : 
"  Benjamin  Bailey  —  outlines  of  will,  Friday,  May  21st,  1829  ; 
given  by  him  to  me  ;  I  wrote  the  will,  and  it  was  executed  —  wit- 
nesses, David  Thompson,  -  Johnson,  -  High.  High 
made  his  mark."  Comparing  this  memorandum  with  the  whole 
evidence,  there  can  he  no  reasonable  doubt  that  this  paper  con- 
tains the  will  of  the  testator.  All  the  particulars  agree  ;  the 
time,  the  names  of  the  witnesses,  the  person  who  drew  the  pa- 
pers, and  the  fact  that  High,  instead  of  writing  his  name,  made 
lu's  mark. 

In  looking  at  this  draft  of  the  will,  there  is  no  difficulty  about 
the  real  estate.  The  devises  are  all  plainly  made,  and  the  Eamo 
is  true  of  the  specific  legacies.  There  is  some  embarrassment 
in  the  clause  disposing  of  the  residue  of  the  personal  property. 
The  clause  on  this  subject  directs  it  to  remain  in  the  family  for 
six  years,  and  then  to  be  divided  equally  among  the  four  young- 
est eons,  Mills,  Henry,  Charles  and  Ebenezer.  But  there  is  a 
bracket  enclosing  at  the  side  this  clause,  with  the  words  written, 
"  this  altered  ;"  and  at  the  foot  of  the  writing  are  added  the  words, 
"  must  remember  to  divide  the  personal  property."  As  the  first 
clause,  which  was  to  be  altered,  gave  the  residue  to  certain  of  tho 


233  CASES  IN  CHANCERY, 

Bailey  et  al.  v.  Stiles  et  al. 

children  in  exclusion  of  the  rest,  and  the  memorandum  at  the 
foot  declares  that  the  personal  property  shall  bo  divided,  it  can 
mean  nothing  else,  upon  any  fair  construction,  than  that  it 
should  be  divided  among  all  his  children,  instead  of .  a  part,  as 
was  at  first  his  intention.  This  I  believe  to  be  the  true  meaning 
of  the  clause,  and  with  that  construction  the  whole  instrument 
is  perfectly  intelligible  and  plain.  At  all  events,  such  a  view, 
inasmuch  as  it  favors  the  defendants,  cannot  be  complained  of 
by  them.  On  this  part  of  the  case  I  refer  to  the  opinion  of  jus- 
tice Baldwin,  of  the  supreme  court  of  the  United  States,  in 
Askew  v.  Odenheimer,  1  Baldwin's  Rep.  390. 

Entertaining  these  views  of  this  case,  it  remains  to  be  consid- 
ered what  relief  can  be  afforded  by  this  court.  The  court  may 
grant  relief  in  three  ways :  by  making  the  injunction  perpetual, 
restraining  these  defendants  from  prosecuting  any  suit  to  disturb 
the  complainants  in  the  possession  and  enjoyment  of  their  res- 
pective tracts ;  by  directing  a  release  on  the  part  of  the  defend- 
ants of  all  their  right  in  said  lands  to  be  made  to  the  complain- 
ants ;  or  by  a  decree  establishing  the  will  in  all  its  parts.  2  Vernon, 
441 ;  1  Dickens,  32  Seatorts  Decrees,  63.  The  last  should  bo 
adopted  whenever  the  contents  can  be  ascertained ;  and  in  tho 
present  case,  being  satisfied  on  this  point,  I  shall  adopt  that  course. 

The  writing  contained  in  Exhibit  M.  1,  on  the  part  of  tho 
complainants,  must  be  taken  as  the  contents  of  the  instrument — 
disposing  of  the  residue  of  the  personal  property,  after  paying 
the  specific  legacies,  among  all  the  children  of  the  testator  living 
at  his  death.  As  the  spoliation  is  not  proved  to  have  been  com- 
mitted by  the  defendants,  or  any  of  them,  the  costs  on  both 
sides  must  be  paid  out  of  the  testator's  estate. 

It  has  been  no  easy  task  to  settle  all  the  points  of  this  case.  I 
have  done  so  to  the  best  of  my  judgment,  and,  I  hopo,  in  a 
manner  consistent  with  the  truth  and  justice  of  the  case.  Thcro 
is  one  view  which  pervades  the  whole ;  that  the  testator  left  a  will 
which  has  been  fraudulently  disposed  of,  and  that  the  complain- 
ants should  not  lose  the  estate  which  their  father  intended  for 
them  for  tho  want  of  that  aid  which  every  citizen  is  entitled  to 


OCTOBER  TERM,  1839.  239 

Bailey  ct  al.  v.  Stiles  et  r.l. 

have  from  the  judicial  tribunals  of  his  country.  It  was,  indeed, 
eaid  at  the  hearing,  that  no  great  harm  could  result  from  a  de- 
cree in  favor  of  the  defendants ;  it  would  only  leave  the  caso  to 
the  provisions  of  the  law,  which  disposed  of  the  properl  y  equally 
among  all  the  children.  But  this  is  not  the  true  view  of  this  caso. 
Every  man  has  a  right  to  dispose  of  his  property  by  his  last  will 
as  he  pleases,  and  the  slightest  encouragement  given  to  the  de- 
struction of  these  instruments,  from  the  supposed  inability  of  the 
power  of  the  court  to  reach  the  case,  would  be  in  the  highest  de- 
gree dangerous  and  impolitic. 
Decree  accordingly. 


JOHN  FRAZEE  v.  CHARLES  T.  INBLEE  and  wife  and 
SAMUEL  CAMPBELL. 

Whore  ft  mortgagee  intentionally  and  understandingly  cancels  his  mortgage, 
and  in  lieu  thereof  takes  a  deed  for  the  same  premises,  find  the  mortgagor 
ixecute.?  a  second  mortgage  upon  the  premises  prior  to  the  deed,  the  first 
mortgage,  iu  the  absence  of  fraud,  will  not  be  revived,  nor  the  second  mort- 
gagee prevented  from  reaping  the  benefit  of  his  priority  acquire!  by  the 
cancellation  of  the  first  mortgage.* 

BILL  for  the  foreclosure  of  a  mortgage  given  by  Inslee  and 
wife  to  the  complainant.  The  bill  states  that  the  mortgage  bears 
date  on  the  8th  of  September,  1836,  and  that  Inslee  and  wife 
afterwards,  by  deed,  conveyed  the  mortgaged  premises  to  Camp- 
boll,  the  other  defendant.  The  bill  is  silent  as  to  the  fact  of  the 
acknowledgment  of  recording  of  cither  instrument. 

Samuel  Campbell,  in  his  answer,  states,  that  on  or  about  the 
8th  of  September,  1836,  the  complainant  placed  in  the  hands  of 
one  Elias  Stansbury,  as  his  agent,  a  sum  of  money  to  be  invest- 
ed on  interest.  That  Stansbury  at  that  time  loaned  three  hun- 
dred dollars  of  said  money  to  Charles  T.  Inslee,and  several  months 
afterwards  loaned  him  the  further  sum  of  two  hundred  dol- 

•  See  GarwooJ  v.  Adm'rs  of  Eldridge,  ante,  145, 


£40  ,  CASES  IN  CHANCERY, 

Frazee  v.  Inslee  and  Campbe'.l. 

lars,  and  at  the  time  of  the  last  advancement  the  bond  and  mort- 
gage mentioned  in  the  complainant's  bill  were  executed.  That 
on  the  25th  of  November,  1836,  Inslee  and  wife  executed  to 
Campbell  a  mortgage  upon  the  same  premises,  to  secure  the  pay- 
ment of  a  bond  of  seven  hundred  dollars,  then  given  by  Inslee 
to  Campbell,  which  was  acknowledged  upon  the  same  day,  and 
recorded  on  the  third  day  of  December  ensuing.  That  at  the  time 
of  the  recording  of  said  deed  the  premises  were  unincumbered, 
and  the  complainant's  mortgage  was  not  on  record.  That  on  the 
21st  of  April,  1837,  Inslee  apph'ed  to  Campbell,  and  urged  him 
to  pay  one  hundred  dollars,  to  cancel  the  bond  and  mortgage  ho 
held  against  Inslee,  and  to  take  a  deed  in  fee  simple  for  the  mort- 
gaged premises  ;  that  the  said  Elias  Stansbury  also  solicited 
Campbell  to  make  this  arrangement,  urging  as  a  reason,  that 
Inslee  was  insolvent,  and  that  it  would  be  to  Campbell's  interest 
thus  to  sliift  his  security.  That  Campbell  agreed  to  the  proposi- 
tion provided  the  property  was  entirely  free  from  incumbrances, 
which  both  Inslee  and  Stansbury  affirmed  was  the  case.  That 
on  the  21st  of  April,  1837,  the  records  were  searched,  and  thero 
was  no  incumbrance  upon  the  property,  excepting  Campbell's 
own  mortgage  for  seven  hundred  dollars ;  and  on  the  same  day 
Inslee  and  wife  executed  and  acknowledged  to  Campbell  a  con- 
veyance in  fee  of  the  premises,  which  was  recorded  on  the  next 
day.  That  simultaneously  with  the  execution  of  the  deed,  Camp- 
bell cancelled  his  bond  and  mortgage  upon  the  premises.  That 
Stansbury,  in  procuring  the  mortgage  from  Inslee  and  wife  to 
the  complainant,  and  also  in  inducing  Campbell  to  cancel  his 
mortgage  and  take  a  deed  for  the  premises,  acted  as  the  agent  of 
the  complainant ;  and  that  Campbell  was  fraudulently  induced  to 
cancel  his  mortgage.  The  answer  denies  all  knowledge  on  tho 
part  of  Campbell  of  the  complainant's  mortgage ;  insists  that 
Campbell  is  a  bona  fide  purchaser  without  notice,  and  that  he  is 
entitled  to  hold  the  premises  by  virtue  of  his  deed,  clear  of  the 
complainant's  mortgage ;  or  that  Campbell's  mortgage  should  be 
revived,  and  first  paid  out  of  the  mortgaged  premises. 


OCTOBER  TERM,  1839.  241 

Frazee  v.  luslee  and  Campbell. 

The  cause  "was  heard  upon  the  bill,  answer,  replication  and 
proofs. 

£  Scudder,  for  complainant. 

B.  Williamson,  for  Campbell,  one  of  the  defendants. 

THE  CHANCELLOE.  The  complainant's  mortgage  bears  the 
earliest  date  of  any  of  the  present  incnmbrances  on  the  properly 
which  it  covers.  It  is  said  to  be  antedated,  but  it  is  not  so  proved, 
and  if  it  might  be  surmised  from  the  attendant  circumstances 
that  is  docs  not  carry  its  true  date,  yet  it  does  not  appear  when  it 
was  in  fact  executed.  The  money  for  which  this  mortgage  wns 
given  was  applied  to  pay  off  a  previous  mortgage  held  by  Samuol 
Oliver  on  the  property,  and  the  complainant  might  by  assign- 
ment of  such  mortgage  have  been  placed  as  the  first  incumbrar- 
ccr.  1  suppose  the  complainant's  was  in  fact,  therefore,  the  first 
lien,  and  was  so  intended  to  be.  By  the  neglect  of  Mr.  Stans- 
bury,  the  complainant's  agent,  as  he  swears,  the  mortgage  was 
not  placed  on  record  until  after  Samuel  Campbell's  mortgage  for 
seven  hundred  dollars,  which  bears  a  later  date.  After  the  com- 
plainant placed  his  mortgage  on  record,  Samuel  Campbell  can- 
celled his  mortgage  of  record,  and  took  a  deed  from  Inslce  and. 
•wife  for  the  property.  This  places  the  parties  again  as  they  ori- 
ginally stood  ;  the  complainant's  mortgage  first,  and  Mr.  Camp- 
bell's second.  It  seems  that  the  complainant's  mortgage  was 
received  in  the  office  to  be  registered  on  the  21st  of  April,  1837,, 
at  half  past  ten  in  the  morning,  and  the  mortgage  of  Campbell! 
•was  cancelled  and  his  deed  recorded  on  the  next  day. 

The  defendant  alleges,  that  his  mortgage  was  cancelled  and! 
his  deed  taken  by  the  fraudulent  management  and  misrepresen- 
tation of  Elias  Stansbury,  the  complainant's  agent.  Ilad  this  been! 
made  out  in  the  proof,  I  should  readily  have  protected  the  de- 
fendant ;  but  there  is,  in  my  opinion,  a  failure  to  sustain  by  evi- 
dence this  part  of  the  case.  There  is,  it  is  true,  an  appearance 
of  a  studied  silence  on  the  part  of  Stansbury  respecting  the  com- 
32 


212  OASES  IN  CHANCERY, 

Frazee  v.  Ins'ee  and  Campbell. 

plainant's  mortgage,  and  a  promptness  in  putting  it  on  record  at 
the  time  when  lie  knew  tlie  parties  were  negotiating  to  sell  the 
land  to  Campbell ;  and  I  have  no  doubt  he  intended,  if  they  did 
sell,  that  the  complainant's  mortgage  should  stand  as  a  lien  on 
the  property.  But  was  all  this  in  any  way  fraudulent  ?  He  wa) 
not  bound  to  give  information,  unless  he  pleased,  that  li£  held  in 
his  hands  a  mortgage ;  but  he  takes  it  to  the  public  office,  and 
there  places  it  on  record,  to  be  seen  by  everybody.  The  only  act 
that  I  perceive  Stansbury  charged  with  by  the  evidence  is,  that 
he  recommended  to  Campbell  to  take  a  deed.  There  is  no  doubt 
that  the  mortgage  of  complainant  was  at  the  clerk's  office  the 
day  before  the  defendant  cancelled  his  mortgage  or  took  his  deed. 
He  examined  the  records,  and  it  seems  the  clerk  gave  him  wrong 
information.  He  did  not,  when  inquired  of,  inform  him  that  this 
mortgage  of  complainant  was  left  there  for  record.  That  it  was 
thorc,  however,  at  the  time,  I  see  nothing  from  the  evidence  to 
make  me  doubt.  The  clerk's  certificate  on  the  back  of  it  savs 

V 

it  was  recorded  on  the  21st  of  April.  In  the  absence  of  any 
proof  of  fraud  by  the  complainant,  or  his  agent,  when  the  mort- 
gage was  cancelled  intentionally  and  understandingly  by  the 
defendant,  and  a  deed  taken  for  the  same  property,  I  cannot 
upon  any  safe  principle  revive  the  mortgage,  or  prevent  the  com- 
plainant from  reaping  the  benefit  of  his  rights  as  a  first  mort- 
gagee. This  would  be  giving  encouragement  to  negligence,  and 
destroy  the  value  of  a  public  record.  It  is  to  be  observed,  that 
the  defendant  has  no  certificate  from  the  clerk  of  any  search,  but 
the  evidence  is,  that  the  clerk's  deputy  told  him,  upon  enquiry, 
that  there  were  only  certain  iucumbrances  on  the  property,  omit- 
ting that  of  the  complainant.  It  further  appears,  from  the  testi- 
mony of  Jeremiah  Crocheron,  that  before  taking  the  deed  he 
mentioned  to  the  defendant,  Campbell,  the  existence  of  this  mort- 
gage— that  he  got  his  information  from  Inslee ;  to  which  Camp- 
bell said,  he  would  run  the  risk  of  that,  for  he  had  searched. 
Tliis  information,  coming  directly  from  Inslee,  should,  at  any 
rate,  have  put  him  on  enquiry  and  more  diligent  investigation. 
This  enquiry  of  the  clerk  was  made  the  day  before  the  mortgage 


OCTOBER  TERM,  1839.  243 

Frazee  v.  Inslee  and  Campbell. 

was  cancelled,  and  the  mortgage  and  deed  were  brought  to  the 
office  by  Campbell  himself.  He  then  had  a  further  opportunity 
to  examine  the  records,  had  he  been  disposed  so  to  do.  The 
whole  evidence  is  obscure  and  uncertain.  It  is  not  quite  clear 
from  Bigbie's  evidence,  what  part  of  the  day  it  was  on  the  21st — 
whether  before  or  after  dinner — that  he  saw  Mr.  Campbell.  It 
might  have  been  before  the  complainant's  mortgage  was  brought 
to  the  office  on  that  day,  though  I  should  infer  the  contrary* 

As  the  defendant  has  failed  to  sustain  his  case  by  sufficient 
evidence,  the  complainant  is  entitled  to  the  ordinary  decree  on 
liis  mortgage. 

Decree  accordingly. 


WILLIAM  DONNINGTON,  Administrator  of  CAROLINE  M.  DOW- 
NING/TON, deceased,  and  DAVID  SANDERSON",  v.  MARY  R. 
MITCHELL,  surviving  Administratrix  of  NATHANIEL  MITCH- 
ELL, deceased,  et  aL 

the  death  of  the  wife  the  husband  may  administer  on  her  estate,  and  in 
that  ch  racter  take  to  himself  for  his  own  benefit,  jure  martii,  all  her  per- 
sonal property;  and  in  case  he  dies  before  he  shall  have  folly  administered 
on  such  estate,  his  representatives  are  entitled  to  the  properly. 

'  letters  of  administration  upon  the  wife's  estate  are  granted  to  the  next  of 
kin  of  the  wife,  they  are  deemed  as  trustees  only  for  the  representatives  of 
the  husband. 

icn  the  property  of  the  wife  by  marriage  agreement,  executed  before  th« 
marriage,  is  conveyed  to  trustees,  and  no  disposition  is  made  of  the  pro- 
perty in  the  event  of  the  wife's  death  before  the  husband— upon  the  deatk 
of  tbe  v.  ife  the  property  will  go  to  her  husband. 

The  rights  of  the  husband  arc  not  suffered  to  be  taken  away  unless  by  exprew 
terms,  and  bis  rights  are  as  complete  in  property  placed  in  trust  as  in  any 
other. 

BILL  for  an  account  and  for  relief,  filed  the  4th  of  February, 
1837.    It  states,  that  Nathaniel  Mitchell,  of  Elizabeth-Town, 


CASES  IN  CHANCERY, 


Aclm'rs  of  Donnington  et  al.  v.  Adm'ra  of  Mitchell  et  al. 

died  about  the  first  of  June,  1828,  leaving  Albert  R.  Mitchell 
and  Caroline  M.  Mitchell,  his  children,  and  Mary  K.  Mitchell, 
hia  widow,  surviving.  That  the  said  Nathaniel!  Mitchell  died 
seized  of  .a  valuable  real  estate,  which  upon  his  death  descended 
to  Ms  children  ;  and  that  the  said  Caroline  M.  Mitchell,  upon  tho 
death  of  her  father,  became  entitled  to  one-third  of  the  rents, 
issues,  profits  and  annual  income  of  tile  said  real  estate,  and  so 
continued  until  her  death.  That  the  said  Nathaniel  Mitchell  also 
died  possessed  of  a  large  personal  estate,  amounting,  after  tho 
payment  of  debts  and  funeral  expenses,  to  fifty  thousand  dollars  ; 
to  one  third  of  which  the  said  Caroline  M.  Mitchell  also  becamo 
entitled  on  the  death  of  her  father.  That  upon  the  death  of  the 
said  Nathaniel  Mitchell,  the  said  Mary  and  Albert,  his  widow 
and  son,  took  out  letters  of  administration  upon  his  estate,  pos- 
sessed themselves  of  all  his  personal  property,  entered  into  tho 
receipt  of  the  rents,  issues  and  profits  of  his  real  estate,  and  con- 
tinued to  receive  and  hold  the  same  to  their  own  use.  That  on 
the  19th  of  December,  1830,  the  complainant,  "William  Don- 
nington, intermarried  with  the  said  Caroline  M.  Mitchell,  and 
that  thotnarriage  relation  between  them  subsisted  until  her  death. 
That  before  the  marriage  between  the  said  "William  and  Caroline 
was  solemnized,  an  indenture  of  three  parts,  bearing  date  on  tho 
18th  day  of  December,  1830,  between  "William  Donnington  of 
the  first  part,  Caroline  M.  Mitchell  of  the  second  part,  and  llary 
B.  Mitchell  of  the  third  part,  was  executed  by  the  said  "William 
and  Caroline,  whereby,  after  reciting  that  a  marriage  was  intend- 
ed shortly  to  be  solemnized  between  them,  and  that  the  said  Wil- 
liam had  agreed  that  if  tho  same  should  take  effect,  ho,  his  cr- 
ecutors,  administrators  or  assigns,  should  not  intermeddle  with, 
nor  have  any  right,  tjtle  or  interest,  in  law  or  equity,  in  or  to 
any  part  of  tho  rents,4  Issues  or  profits  of  the  real  cstato  of  tho 
said  Caroline,  or  to  any  part  of  her  estate,  real  or  personal,  in- 
herited from  her  father,  but  that  tho  same  should  always  remain 
to  tho  said  Caroline,  or  to  the  uses  expressed  in  said  dcod.  Tho 
said  William  Donnington  covenanted  and  agreed  that  tho  estate, 
real  and  personal,  of  the  said  Caroline,  should,  notwithstanding 


OCTOBER  TERM,  1809.  245 

Ailm'rs  of  Donning!  on  eta],  y.  Adm'rs  of  Milchell  efeal. 

the  marriage,  be  accounted,  reckoned  and  taken  as  a  separate 
and  distinct  estate  of  and  from  the  estate  of  him  the  said  "Wil- 
liam Donnington,  and  be  in  no  wise  liable  or  subject  to  him,  or 
to  the  payment  of  any  of  his  debts,  but  that  the  same,  with  the 
interest  and  profits  thereof,  should  be  appropriated  to  the  purpo- 
ses in  the  said  deed  specified.  And  the  said  Caroline,  in  and  by 
the  said  deed,  conveyed  and  transferred  the  whole  of  her  estate, 
real  and  personal,  to  the  said  Mary  R.  Mitchell,  in  trust — to  pay 
the  rents  and  interest  of  the  same  to  the  said  Caroline,  or  to  vest 
them  in  the  name  of  the  said  Mary,  upon  such  securities  as  she 
the  said  Caroline  might  direct,  in  trust  for  the  said  Caroline ;  and 
with  the  assent  and  concurrence  of  the  said  Caroline,  to  sell  and 
transfer  any  part  of  the  said  estate  ;  and  also  in  trust  that  the 
said  estate,  and  the  proceeds  and  income  thereof,  should  be 
taken  and  enjoyed  by.  such  person  or  persons,  and  for  such  uses, 
as  the  said  Caroline  should  at  any  time  limit  and  direct,  either 
by  her  last  will  and  testament  duly  executed  according  to  law,  or 
by  any  other  writing  signed  by  her  in  the  presence  of  two  or 
more  credible  witnesses.  The  bill  further  states,  that  the  said 
articles  of  agreement  were  never  executed  by  the  said  Mary  R. 
Mitchell ;  and  insists,  that  by  reason  thereof,  the  said  articles  of 
agreement  never  took  effect,  and  that  the  same  are  inoperative 
and  void  in  law.  The  bill  further  states,  that  the  said  Caroline 
died  on  the  the  17th  of  August,  1836,  leaving  the  said  estate,  reel 
and  personal,  and  the  rents  and  interest  thereof,  undisposed  of, 
without  having  executed  any  last  will  and  testament  according 
to  law,  or  any  writing  signed  by  her  as  specified  in  the  said  arti- 
cles of  agreement  That  after  the  death  of  the  said  Caroline, 
letters  of  administration  upon  her  estate  were  granted  in  due 
form  of  law  to  the  said  William  Donnington  ;  and  that,  he  being 
anable  himself  to  prosecute  his  bill  for  the  recovery  of  the  goods 
and  chattels,  rights  and  credits  which  were  of  the  said  Caroline 
at  her  death,  and  being  indebted  to  one  David  Sanderson,  on 
the  30th  of  January,  1837,  ho  conveyed  all  his  rights  as  such 
administrator,  in  the  estate  of  the  said  Caroline,  to  the  said  Da- 
vid Sanderson,  upon  certain  trusts  in  the  said  deed  specified. 


246  CASES  IN  CHANCERY, 

Adm'rs  of  Donnington  et  al.  v  Adm'rs  of  Mitchell  et  al. 

The  bill  prays  an  account  of  the  personal  estate  of  the  said  Na- 
thaniel Mitchell,  and  of  the  rents  and  profits  of  his  real  estate, 
from  the  time  of  his  death  until  the  death  of  the  said  Caroline ; 
and  a  decree  in  favor  of  the  complainants  for  the  portion  of  the 
said  Caroline  in  the  same,  and  for  all  her  personal  estate,  and 
the  rents  and  profits  of  her  real  estate,  in  the  hands  of  the  de- 
fendants. 

After  the  filing  of  the  bill,  Albert  R.  Mitchell,  one  of  the  de- 
fendants, died,  and  the  suit  was  continued  against  his  executors. 
Separate  answers  were  filed  by  Mary  R.  Mitchell,  as  surviving 
administratrix  of  ^Nathaniel  Mitchell,  deceased,  and  by  the  ex- 
ecutors of  Albert  R.  Mitchell.  The  answers  disclose  no  new 
facts.  They  admit  the  material  allegations  contained  in  the 
complainants'  bill,  but  insist,  that  the  articles  of  agreement  sign- 
ed by  the  said  "William  and  Caroline  are  valid  and  operative  in 
law,  and  that  thereby  the  said  William  absolutely  relinquished 
all  right,  claim  and  interest  in  the  estate  of  the  said  Caroline, 
both  real  and  personal,  and  covenanted  and  agreed  that  the 
Bame  should  be  her  own  separate  property,  free  from  his  control, 
and  that  he  thereby  deprived  himself  of  all  benefit  and  advan- 
tage to  be  derived  therefrom. 

The  cause  was  heard  upon  the  pleadings. 

&  Scudder  and  I.  H.  Williamson,  for  complainants. 
J.  J.  Chetwood  and  Frelinghuysen,  for  defendants. 

THE  CHANCELLOR.  There  can  be  no  doubt  that  the  complain- 
ants in  this  case  are  entitled,  upon  the  general  rule,  to  an  account 
at  the  hands  of  the  defendants.  The  bill  was  filed  by  William 
Donnington,  in  his  Iife-tim3,  ai  administrator  of  his  wife,  fcr 
in  account  of  her  personal  estate.  He  died,  and  the  complain- 
ants ha^e  obtained  letter.}  of  administration  of  tho  husband's  es- 
tate, and  also,  de  lonis  non,  of  tho  estate  of  his  wife.  On  the 
death  of  a  wife  the  husband  may  administer  on  her  estate,  and  in 
that  character  take  to  himself,  for  his  own  benefit,  jure  mariti, 


OCTOBER  TERM,  1839.  2*7 

Aclm'ra  of  Donnington  et  al.  v.  Adm'rs  of  Mitchell  et  ol. 

all  her  personal  property  ;  and  in  case  ho  dies  before  lie  shall 
Lave  fully  administered  on  such  estate,  his  representatives  are 
entitled  to  the  property.  If  letters  of  administration  upon  the 
wife's  estate  are  granted  to  the  next  of  kin  of  the  wife,  they  are 
deemed  as  trustees  only  for  the  representatives  of  the  husband. 
Elliott  v.  Collier^  Atkyns,  526  ;  Watt  v.  Watt,  3  Yes.  jun. 
£14;  Stewart  v.  /Stewart,  1  Johns.  Ch.  229;  Squib  v.  Wyn, 
1  P.  Wms.  378 ;  2  Kent? a  Com.  135.  All  the  cases  agree  on 
this  subject,  and  as  a  general  rule  it  was  not  denied  on  the  ar- 
gument. It  has  indeed  been  made  a  question,  not  whether  the 
husband  is  entitled  to  the  separate  estate  of  his  wife,  but  in  what 
character,  whether  as  next  of  kin  of  the  wife,  or  as  husband. 
If  ho  be  entitled,  it  is  not  of  much  importance  to  discuss  in 
which  of  these  characters  he  takes.  The  better  opinion,  Low- 
ever,  certainly  is,  that  he  takes  as  husband;  for,  strictly  speak- 
ing, he  cannot  bo  said  to  be  of  kin  to  the  wife.  This  subject, 
with  a  reference  to  the  cases,  will  be  found  fully  discussed  and 
settled  in  the  case  just  cited  from  7  Johns.  Ch.  229. 

But  this  rule,  it  is  equally  clear,  must  and  will  be  controlled 
by  any  legal  instrument  which  shall  make  a  different  disposition 
of  the  wife's  estate.  Prior  to  his  marriage,  the  complainants' 
intestate  and  his  wife  did  enter  into  articles  respecting  her  sepa- 
rate estate,  and  the  whole  case  turns  upon  the  true  construction 
of  that  instrument. 

The  father  of  Mrs.  Donnington  died  a  few  years  prior  to  her 
marriage,  and  left  to  his  family,  consisting  of  his  wife  and  two 
children,  a  very  considerable  estate.  The  marriage  agreement 
was  signed  by  these  parties  just  before  their  marriage ;  and  while 
there  arc  some  general  expressions  in  it  which  look  like  a  total 
abandonment  of  all  claim  on  the  part  of  the  husband  to  any  in- 
terest in  the  estate,  yet  it  manifestly  was  intended  to  guard 
against  the  husband  and  his  creditors  only  during  the  coverture. 
There  is  no  disposition  made  of  the  property  in  the  event  of  the 
wife's  death  before  her  husband,  but  that  is  reserved  for  the  fu- 
ture appointment  of  the  wife,  and  she  died  without  making  a  my 
such  appointment. 


248  CASES  IN  CHANCERY", 

Adm'rs  of  Donnington  et  al.  v.  Adm'rs  of  Mitchell  et  al. 

The  instrument  is  dated  on  the  18th  day  of  December,  1830, 
the  day  before  the  marriage  was  solemnized  ;  and  after  stating 
that  Nathaniel  Mitchell  died  intestate,  leaving  certain  real  estate, 
which  is  therein  described,  to  his  family,  as  well  as  personal  pro- 
perty, which  had  never  been  divided,  and  that  a  marriage  was 
about  to  be  solemnized  between  the  parties,  it  was  further  reci- 
ted, that  William  Donnington,  the  intended  husband,  had  agreed 
that  if  the  marriage  should  take  place,  then,  notwithstanding 
the  marriage,  the  said  William  Donnington,  his  executors,  ad- 
ministrators or  assigns,  should  not  intermeddle  with  or  have  any 
right,  or  title,  or  interest  in  the  same,  (using  very  strong  words,) 
but  that  the  same  should  remain  to  his  intended  wife,  or  to  such 
uses  as  should  be  therein  afterwards  expressed.  The  said  Wil- 
liam Donnington  covenants  that  all  the  said  estate  shall  be  reck- 
oned and  taken  as  a  separate  and  distinct  estate,  and  be  no  way 
liable  to  him  or  to  the  payment  of  his  debts,  but  shall  be  dispos- 
ed of  as  therein  after  mentioned.  Caroline  M.  Mitchell,  the  in- 
tended wife,  then  conveys  all  her  estate  to  her  mother  upon  cer- 
tain trusts,  and  it  is  to  these  trusts  that  we  are  especially  to  look. 
The  whole  instrument,  as  well  in  the  recital  as  the  covenants  on 
the  part  of  the  husband,  point  to  these  for  the  future  direction  of 
the  estate.  By  this  trust  it  is  declared,  that  all  the  said  estate, 
and  the  income  thereof,  shall  go  to  such  persons,  and  for  such, 
uses,  as  the  said  intended  wife  shall  at  any  time  during  her  life 
direct,  either  by  her  last  will  and  testament  in  writing  duly  exe- 
cuted according  to  law,  or  by  any  other  writing  whatever  signed 
with  her  hand  in  tho  presence  of  two  or  more  witnesses. 
The  disposition  of  tho  property  after  the  wife's  death,  remained 
to  be  made  by  the  wife,  either  by  will  or  other  writing,  and  none 
such  was  ever  made.  Who,  then,  is  entitled  to  the  personal  es- 
tate—for that  alono  can  be  the  subject  of  enquiry  here — the 
next  of  kin  of  the  wife,  or  the  husband  ?  The  wife  has  an  es- 
tate in  the  hands  of  trustees,  undisposed  of.  It  belonged  to  her 
jit  her  death,  and  must,  in  the  absence  of  any  disposition  of  it, 
go  to  her  husband.  The  rights  of  tho  husband,  it  will  be  seen, 
arc  not  suffered  to  bo  taken  away,  unless  by  exprcssa  term,  and 


OCTOBER  TERM,  1839.  249 

AJm'rs  of  Donuington  et  al    v.  Adm'rs  of  Mitchell  et  nl. 

his  rights  arc  as  complete  in  property  placed  in  trust  as  in  any 
other.  The  case  of  Stewart  v.  Stewart,  in  7  Johns.  Ch.  229, 
before  cited,  is  very  much  like  the  present,  and  it  was  held  to 
Lave  been  only  a  provision  during  coverture,  and  that  the  hus- 
band was  entitled,  at  the  death  of  the  wife,  to  the  estate.  That 
was  a  conveyance  to  trustees,  subject  to  the  future  disposition  of 
the  wife  by  will  or  other  writing,  and  no  such  writing  was  ever 
executed.  There  were  in  that  case  two  important  facts  mili- 
tating against  the  construction  placed  upon  the  "writing  by  the 
court,  which  do  not  exist  here.  The  recitals  declared  that  the 
intended  wife  desired  to  provide  for  herself  and  her  children, 
but  this  was  not  in  the  granting  part  of  the  deed,  and  further, 
the  husband  released  all  his  marital  rights  over  the  property. 
See  also  on  this  subject,  Clancy  on  Bights  of  Women,  11,  and 
G26,  note  D.;  Bailey  v.  Wright,  18  Vesey,  49 ;  Hawkins  v. 
Hawkins,  10  English  Cond.  Ch.  Rep.  2. 

It  would  have  been  very  easy,  had  it  been  the  intention  of  the 
parties,  to  have  declared  the  trust  in  favor  of  the  next  of  kin,  or 
in  some  other  manner  to  have  shown  a  determination  to  exclude 
the  husband.  No  such  trust  having  been  declared,  nor  indeed 
any  disposition  whatever  made  of  the  property  after  the  death  of 
the  wife,  I  can  consider  this  instrument  only  as  a  provision  during 
coverture,  leaving  the  rights  of  all  parties,  on  the  death  of  the 
wife,  to  be  settled  by  the  law.  It  leaves  the  estate  as  if  no  set- 
tlement had  been  made. 

Some  objections  were  stated  on  the  argument  to  the  settle- 
ment, wliich  did  not,  I  confess,  strike  me  as  being  well  founded ; 
but  it  is  unnecessary  to  examine  them,  because,  taken  as  a  valid 
deed,  it  no  way,  in  my  opinion,  impairs  the  rights*of  the  husband. 

I  shall  direct  an  account  to  be  taken  by  a  master,  of  the  per- 
Bonal  estate  of  the  wife,  and  of  the  rents  and  profits  of  her  real 
estate  to  the  time  of  her  death. 

Order  accordingly. 

[An  appeal  was  taken  by  the  defendants  from  the  decree  in 
this  cause,  which  is  still  pending  undecided.] 


250  CASES  IK  CHAKCEKY, 


JOHN  FAULKS  v.  MICHAEL  BURNS.! 


The  parties  to  a  deed,  in  a  case  not  affecting  third  persons,  maybyagr-e- 
ment  cancel  if,  if  it  be  not  recorded  ;  but  the  party  destroying  the  .nstru- 
ment  must  in  all  cases  show  his  authority  for  so  doing. 


THE  bill  states,  that  on  or  about  the  29th  of  September,  1836, 
the  defendant,  being  seized  in  fee  of  a  lot  of  land  in  Elizabeth- 
Town,  agreed  to  sell  the  same  to  the  complainant  for  four  hun- 
dred dollars.  That  the  lot  was  conveyed  by  Elihu  J.  Crane  and 
wife  to  the  defendant,  by  deed  dated  on  or  about  the  16th  of 
May,  1836.  That  the  defendant,  through  his  agent,  Sylvanus 
Iloyt,  proposed  to  the  complainant,  that  the  deed  from  Crane 
and  wife  to  the  defendant,  not  having  been  recorded,  should  be 
delivered  up  to  the  complainant,  and  that  a  deed  should  be  exe- 
cuted from  Crane  to  the  complainant ;  to  which  arrangement  the 
complainant  assented.  This  agreement  having  been  made 
known  by  the  defendant,  or  his  agent  Sylvanus  Iloyt,  to  Crane, 
the  said  Crane  and  wife,  by  deed  dated  the  29th  of  September, 
1836,  conveyed  the  said  lot  in  fee  to  the  complainant.  That 
the  last  mentioned  deed  was  duly  executed  and  acknowledged 
by  Crane  and  wife,  and  by  them  delivered  to  the  complainant,  and 
at  the  same  time  the  defendant,  through  his  agent  Iloyt,  deliv- 
ered to  complainant  the  deed  from  Crane  and  wife  to  the  com, 
plainant ;  and  upon  the  delivery  of  said  deeds  the  complainant 
paid  the  purchase  money,  (which  was  a  full  consideration  for  the 
premises,)  and  entered  into  possession,  and  still  remains  in  the 
actual  possession  of  the  said  premises,  and  has  erected  improve- 
ments thereon  to  the  value  of  five  hundred  dollars.  The  bill 
further  states,  that  the  defendant  has  commenced  an  action  of 
ejectment  against  the  complainant  in  the  supreme  court,  for  the 
recovery  of  the  premises ;  and  prays  an  injunction  to  restrain 
the  defendant  from  proceeding  at  law  to  recover  the  premises, 
and  also  that  the  defendant  may  be  decreed  to  execute  to  the 
complainant  such  conveyance  as  may  be  requisite  to  perfect  his 
title  to  the  premises. 


OCTOBER  TERM,  1839.  251 


Faulks  v.  Burns. 


The  defendant,  by  his  answer,  admits  that  he  became  seized 
of  the  premises  in  question  as  stated  in  the  complainant's  bill, 
and  that  his  deed  had  not  been  recorded.  That  lloyt  called  on 
him,  urged  him  to  sell,  and  stated  that  he  could  procure  a  pur- 
-  chaser  for  the  premises  ac  four  hundred  and  twenty-live  dollars ; 
and  that  the  defendant  agreed  that  if  Hoyt  would  obtain  a  pur- 
chaser at  that  price,  he,  the  defendant,  would  execute  a  deed  for 
the  premises.  That  the  deed  from  Crane  to  the  defendant  for 
the  premises,  was  placed  in  Hoyt's  hands,  as  evidence  to  persons 
wishing  to  purchase,  of  the  defendant's  title,  and  for  no  other 
purpose.  The  answer  expressly  denies  that  Hoyt  was  the  agent 
of  the  defendant,  that  he  was  ever  authorized  to  deli ver  a  deed 
for  the  premises  or  to  receive  the  purchase  money,  or  that  he 
had  any  authority  from  him  except  to  iind  a  purchaser  for  the 
premises  at  four  hundred  and  twenty-iive  dollars.  It  also  denies 
that  the  defendant  ever  informed  Elihu  J .  Crane,  either  person- 
ally or  by  agent,  of  any  such  agreement  ag  is  alleged  in  the 
complainant's  bill,  or  that  he  ever  requested  Crane  to  execute  a 
deed  to  the  complainant ;  that  he  ever  received  the  purchase 
money  for  the  premises,  or  consented  that  the  complainant  should 
take  possession  thereof  or  make  improvements  thereon.  Tho 
answer  states  that  the  deed  from  Crane  to  the  defendant  was 
cancelled  without  his  authority,  knowledge  or  consent,  insists 
that  his  title  cannot  thereby  be  divested,  and  admits  that  an 
ejectment  has  been  commenced  for  the  recovery  of  the  premises. 
The  cause  was  heard  upon  the  bill,  answer,  replication  and 
proofs. 

B.  Williamson  and  S.  Scudder,  for  complainant. 

I 

F.  B.  Chetwood,  for  defendant. 

THE  CHANCELLOB.  In  the  year  1836,  during  the  rage  for 
speculation  in  building  lots,  the  defendant  made  a  purchase  of  a 
lot  in  Elizabeth-Town.  The  deed  was  never  recorded.  Tho 
bill  charges,  that  during  the  same  year  the  complainant  pur- 


252  CASES  IN  CHANCERY, 


Faults  v.  Burns. 


chased  this  same  lot  of  Sylvaims  Hoyt,  the  agent  of  the  defend- 
ant,  who  cancelled  the  deed  made  to  the  defendant,  and  got  tho 
grantors  to  make  the  conveyance  directly  to  him.  The  answer 
admits  that  the  defendant  was  called  on  by  Hoyt,  and  informed 
that  he  could  procure  a  purchaser  for  the  lot,  and  that  he  let  him 
take  the  deed  for  the  purpose  of  satisfying  any  person  desirous  of 
purchasing  that  he  had  the  title ;  but  it  is  denied  that  he  was  au- 
thorized to  make  a  sale  of  the  premises,  or  to  cause  the  defend- 
ant's deed  to  be  cancelled.  The  defendant  brought  an  ejectment 
in  the  supreme  court  to  recover  the  possession  of  this  lot,  and 
upon  the  filing  of  this  bill  an  injunction  was  issued,  which  is  sti'l 
in  force,  restraining  the  defendant  from  further  pro333dinj  i.i 
that  suit,  and  from  instituting  any  other  suit  for  the  same  object. 
The  complainant  now  seeks  to  have  that  injunction  made  per- 
petual. 

There  can  be  no  doubt  that  the  parties  to  a  deed,  in  a  case  not 
affecting  third  persons,  may  by  agreement  cancel  it  if  it  be  no- 
recorded.  This  may  in  some  cases  become  necessary  to  correct 
some  mistake,  or  to  prevent  wrong  being  done ;  but  such  course 
is  not  advisable,  as  tho  party  destroying  the  instrument  must  in 
all  cases  show  his  authority  for  so  doing. 

The  only  question  here  is  as  to  the  authority  of  Hoyt.  If  ho 
was  authorized,  as  the  complainant  charges  he  was,  his  acts  bind 
his  principle ;  if  not,  the  whole  transaction  is  void  and  a  fraud 
on  the  defendant.  Tho  evidence  is  all  on  one  side ;  the  defend 
ant  resting  his  case  alone  on  the  insufficiency  of  the  complain- 
ant's evidence. 

Thomas  Gibbons  Trumbull  testifies,  that  he  sold  the  premises 
to  the  defendant :  that  the  contract  was  made  with  Hoyt  for  him. 
Ho  never  had  any  deed  himself,  but  the  legal  title  was  in  Elihu 
J.  Crane,  who  made  the  deed.  Charles  Odling  testifies,  that 
Hoyt  was  much  engaged  at  Elizabeth-Town  in  the  buying  and 
selling  of  lots.  That  lie  went  to  the  city  of  New-York  with  tho 
complainant  after  the  defendant  had  commenced  his  ejectment 
suit,  and  stopped  at  defendant's.  On  that  occasion  the  defendant 
eaid  Hoyt  was  his  agent  in  Elizabeth-Town:  that  he  had  bought 


OCTOBER  TEEM,  1839.  253 


Fanlks  v.  Burns. 


the  property  and  sold  it  to  the  complainant,  and  had  got  the  mo- 
ney, and  that  he  could  not  get  it  of  him :  that  if  he  could  not 
get  tho  money  of  Hoyt  he  would  get  it  of  complainant.  They 
were  speaking  of  the  lot  in  question  in  this  suit.  Elihu  J.  Crane 
testifies,  that  he  first  made  a  deed  to  defendant  for  part  of  the 
premises  involved  in  this  cause,  at  the  request  of  Mr.  Trumbull 
and  Mr.  Iloyt ;  afterwards,  at  their  instance,  that  deed  was  can- 
celled, and  a  new  one  made  to  the  defendant  for  the  whole  pre- 
mises ;  and  afterwards,  at  the  instance  of  Mr.  Hoyt,  this  deed 
was  cancelled  and  a  new  one  made  to  the  complainant.  This 
was  done,  as  Iloyt  stated,  to  save  the  trouble  of  going  to  the 
defendant  who  lived  in  New- York.  The  defendant  afterwards 
told  the  witness  that  he  had  received  twenty-five  dollars  from 
Iloyt  on  the  sale  made  the  complainant,  as  the  profits.  Jacob  G. 
Crane  testifies  that  the  complainant,  since  his  purchase,  has  put 
buildings  on  the  premises  to  the  value  of  three  or  four  hundred 
dollars :  that  Iloyt  was  a  large  dealer  and  speculator  in  lots  at 
Elizabeth-Town,  and  bought  and  sold  extensively  for  people  in 
New- York.  William  II.  Price  testifies,  that  he  was  at  the  de- 
fendant's, who  keeps  an  oyster-house  in  New- York,  with  Elihu 
J.  Crane.  The  conversation  came  up  respecting  the  deeds  in- 
volved in  this  case.  Crane  asked  the  .defendant  if  he  had  re- 
ceived any  money  from  Iloyt ;  he  said  he  had  received  twenty- 
five  dollars  as  a  premium  for  tho  lots  he  sold  complainant.  The 
defendant  further  stated,  that  Iloyt  had  wanted  to  be  his  agent 
in  buying  some  property  on  the  hill  at  Elizabeth-Town,  but 
that  he  had  been  caught  in  the  trap  once  and  he  did  not  want 
him  to  get  him  into  another ;  that  ho  had  got  the  upper  hand  of 
him  once,  and  he  did  not  want  him  to  do  it  again. 

From  this  evidence,  uncontradictcil  as  it  is,  tho  agency  of  Iloyt 
in  this  transaction  is  fully  made  out.  The  evidence  shows  fur- 
ther, that  Iloyt  received  the  money  on  this  sale,  and  has  become 
embarrassed  in  his  circumstances.  The  defendant  has  probably 
suffered  by  trusting  to  Hoyt,  which  has  occasioned  this  wholo 
difficulty.  Some  objections  were  stated  to  the  competency  of 
Elihu  J.  Crane,  but  the  evidence  is  so  full  without  his  testimony 


254  CASES  IN  CHANCERY, 


Faulks  v .  Burrn. 


tliat  it  is  unnecessary  to  examine  into  them.  As  the  complainant 
lias  now  a  deed  which  conveys  to  him  the  legal  title,  the  only 
relief  he  can  want  is  to  make  the  injunction  perpetual.      Such 
decree  will  accordingly  be  made,  with  costs. 
Injunction  perpetual,  with  costs. 


JOHN  S.  HOAGLAND  v.  PETEB  LATOUEETTE  and  Jomr 
LATOURETTE. 

The  vender  of  an  estate,  from  the  time  of  his  contract,  is  a  trustee  for  the 
purchaser;  and  the  vendee,  as  to  t'ue  money,  is  a  trustee  for  tho  vendor. 

If  a  p'rson  who  h:is  contracted  to  Bell  land,  sells  it  to  a  third  person,  tho  se- 
cond purchaser,  if  he  have  notice  at  the  time  of  his  purchase  of  the  previ- 
ous contract,  will  bo  compelled  to  convey  the  property  to  tho  first  pur- 
chaser. 

Being  a  purchaser  with  notice  of  the  equitable  title  of  the  vendee  under  the 
contract,  ho  stands  in  the  place  of  the  vendor,  and  is  liable  to  the  earn* 
equity. 

A  judgment  creditor,  with  notice,  can  stand  in  no  better  situation  than  a  pur. 
chaser. 

Articles  mxde  for  a  valuable  consideration,  and  the  money  paid,  will  in  equity 
bind  the  estate  and  prevail  against  any  judgment  creditor  mesne  between  the 
articles  and  tho  conveyance;  but  tho  consideration  paid  must  be  somewhat 
adequate  to  the  thing  purchased. 

If  the  vendee  bo  a  creditor  cf  tho  vendor,  aud  his  design  in  purchasing  ba  to 
pave  his  debt,  and  this  be  known  to  the  second  purchaser,  equity  will  regard 
the  purchase  money  as  paid  the  moment  the  contract  is  complete,  and  a  sub- 
sequent judgment  will  not  attach  upon  the  purchase  money  in  tho  hands  of 
the  vendee. 

A  judgment  creditor  mtsne  between  the  articles  and  the  conveyance,  will  bo 
restrained  by  pcrpotaal  injunction  from  enforcing  hia  judgment  against  tho 
estate. 


BILL  for  an  injunction,  filed  the  tenth  day  of  November,  1837. 
On  filing  the  bill  an  injunction  was  issued  as  prayed  for.  John 
Lotourctto  alone  answered  the  bill.  A  decree,  pro  confesso,  was 
taken  against  the  other  defendant.  Tho  cause  was  heard  upon 


OCTOBER  TERM,  1839. 


Hoagland  v.  Latourette  et  nl. 


the  pleadings  and  proofs,  at  July  term,  1839.     The  facts  of  the 
case  are  stated  in  the  opinion  of  the  chancellor. 

n.  W.  Green,  for  complainant. 
P.  D.  Vroom,  for  defendant. 

Cases  cited  for  the  complainant.  1  Sugden  on  Vendors,  211, 
539;  1  Attyns,  572;  6  J.  C.  It.  403;  10  Modern,  518; 
2  Eq.  Co.  Ab.  32  ;  2  Vesey,  437  ;  16  Vesey,  249  ;  17  Vesey, 
433  ;  15  Vesey,  329  ;  1  P.  W.  278, 

Cases  cited  for  the  defendant.  1  ^.  Ca.  Ab.  320  ;  3  J)ess. 
74;  2  TFflwA.  (7.  C.  R.  69;  1  Pa^?,  128,  exparte  H&vce; 
1  P.  W.  282  ;  3  F«ey,  576  ;  2  F^r/w^,  565  ;  4  P<M^,  1. 


THE  CHANCELLOR.  There  is  no  difficulty  about  the  facts  in 
this  case.  There  is  no  contradiction  in  the  evidence.  Peter 
Latourette,  of  the  county  of  Somerset,  being  seized  in  fee  of  a 
valuable  mill-seat  and  other  lands  in  that  county  and  in  the  ad- 
joining county  of  Hunterdon,  advertised  them  for  sale  at  public 
auction.  These  lands  were  mortgaged  at  the  time  for  a  largo 
sum  of  money,  for  an  amount  nearly  equal  to  their  value.  Ar- 
ticles of  sale  were  drawn  up  and  signed  by  Mr.  Latourette.  The 
property  was  set  up  in  a  public  manner  in  the  presence  of  a 
number  of  persons,  and  purchased  by  the  complainant  for  seven 
thousand  seven  hundred  dollars,  who  signed  at  the  tune  the  arti- 
cles, acknowledging  himself  the  purchaser.  The  sum  at  which 
the  property  was  sold  exceeded  the  amount  of  the  incumbranccs 
by  several  hundred  dollars.  The  deed  was  duly  executed  to  the 
complainant  according  to  the  terms  of  the  sale,  who  took  pos- 
session of  the  premises  and  made  improvements  thereon.  Be- 
tween the  time  of  the  sale  at  the  auction  and  the  execution  of 
the  deed,  Peter  Latourette,  the  vendor,  confessed  a  judgment  to 
his  brother,  John  Latourette,  in  the  supreme  court,  on  which 
he  has  taken  out  execution,  and  by  the  sheriff  of  Somerset  lor- 


256  CASES  IN  CHANCEEY, 

Hoagland  v.  Latourette  et  al. 

led  on  tliis  property.  By  virtue  of  this  judgment  and  execution 
John  Latourette  noTV  claims  to  have  a  lien  upon  the  said  premises 
prior  to  the  complainant's  title,  and  has  caused  thorn  to  be  adver- 
tised for  sale.  He  is  enjoined  from  making  such  salo  by  the  or- 
dzr  of  this  court.  The  bill  charges  the  judgment  creditor  with 
notice  of  the  sale  to  the  complainant,  before  and  at  the  time  of 
obtaining  his  judgment.  The  answer  is  silent  upon  all  this  part 
of  the  case,  but  the  proof  is  ample.  He  attended  at  the  sale, 
and  was  a  bidder  on  the  property.  The  complainant  •was  a  cre- 
ditor of  Peter  Latourette  for  more  than  sufficient  to  pay  the  dif- 
ference between  the  mortgages  on  the  property  and  tho  price  he 
paid  for  it,  and  such  difference  was  credited  in  the  complainant's 
account  against  him. 

TVe  have,  then,  this  plain  case  to  settle,  stript  of  any  peculiar 
circumstances.  A  contract  is  made  by  Mr.  Latourette  for  the 
sale  of  his  lands  to  the  complainant.  There  is  no  prentence  of 
fraud.  The  sale  is  at  public  auction,  and  in  the  presence  of 
many  witnesses.  The  agreement  is  signed  by  both  parties ;  and 
between  the  day  of  sale  and  the  execution  of  the  deed,  one  cf 
the  very  persons  bidding  at  the  sale  and  acquainted  with  all  the 
circumstances,  obtains  a  judgment  by  confession  against  the  ven- 
dor, and  under  that  judgment  claims  the  right  to  defeat  the  sale 
by  Latoiirette,  and  to  sell  the  lands  as  by  virtue  of  a  prior  in- 
cumbrance. 

Tho  vendor  of  an  estate,  from  the  time  of  his  contract,  is  a 
trustee  for  tho  purchaser,  and  the  vendee,  as  to  tho  money,  is  a 
trustee  for  the  vendor.  Green,  v.  Smith,  I  Atfojns,  572.  Had 
Peter  Latourette,  af  tor  his  contract  with  the  complainant,  sold 
the  land  to  his  brother,  with  notice  of  the  previous  contract  at 
the  time  of  tho  sale,  equity  would  compel  the  purchaser  to  con- 
vey tho  property  to  the  complainant.  Being  a  purchaser  with 
notice  of  tho  complainant's  equitable  title  undor  the  agreement, 
lie  stands  in  the  place  of  the  vendor,  and  is  liablo  to  tho  n::me 
equity.  This  13  woll  sottlod.  Soo  Champion  v.  Urozon,  G  Johii* 
Ch.  402,  and  the  cases  there  referred  to.  A  judgment  creditor 
with  notice  can  stand  in  no  bettor  situation  than  a  pnrchnscr. 


OCTOBER  TE11M,  1839.  257 


Hoagland  v.  Latourette  et  r.l. 


In  the  case  of  Finch  v.  the  Earl  of  Winchelsea,  1  P.  Wms. 
282,  lord  chancellor  Cowper  says,  "  Articles  made  for  a  valuable 
consideration,  and  the  money  paid,  will  in  equity  bind  the  estate, 
and  prevail  against  any  judgment  creditor  mesne  betwixt  the  ar- 
ticles and  the  conveyance ;  but  this  must  be  where  the  conside- 
ration paid  is  somewhat  adequate  to  the  thing  purchased ;  for  if 
the  money  paid  is  but  a  small  sum  in  respect  of  the  value  of  the 
land,  this  shall  not  prevail  over  a  mesne  judgment  creditor."  In 

Paige,  129,  this  is  recognized  as  the  settled  rule  ;  and  chan- 
cellor Dcssaussure,  in  3  Dessaus.  Rep.  74,  declares  this  to  have 
been  the  settled  doctrine  ever  since  the  opinion  of  lord  Cowper. 
The  same  principle  is  again  further  recognized  in  4  Paige,  15. 

It  is  contended  in  this  case,  however,  that  the  price  paid  was 
not  a  fair  one  ;  that  the  money  was  not  paid  before  the  judgment 
was  obtained  ;  and  that  at  all  events  the  judgment  creditor  is  en- 
titled to  claim  the  difference  between  the  incumbrances  on  the 
property  and  the  price  the  complainant  was  to  pay  for  it.  I  can- 
not think  any  of  these  grounds  well  taken.  The  price  paid  by 
the  complainant,  though  atnoderate  one,  perhaps,  for  the  pro- 
perty, was  not  more  so  than  will  generally  be  the  case  on  a  sale 
at  auction.  There  are  only  two  witnesses  examined,  and  they 
both  say  the  property  sold  for  a  fair  price.  John  Latourette,  and 
gome  of  the  mortgage  creditors,  were  there,  and  yet  they  declin- 
ed bidding  as  much  as  the  complainant.  As  to  the  money  being 
paid,  it  is  charged  in  the  bill  that  the  complainant  was  a  creditor 
of  Peter  Latourette,  and  that  a  principal  object  he  had  in  view- 
in  making  the  purchase,  was  to  save  his  debt  or  a  part  of  it,  and' 
that  this  was  all  known  to  John  Latourette.  The  answer  docs, 
not  deny  this  statement,  but  passes  over  all  this  part  of  the  bill, 
in  silence.  Taking  this  to  be  the  true  state  of  the  case,  the  mo- 
ment Iloagland  made  the  purchase,  the  money  was  paid  by  hia; 
debt,  so  that  nothing  remained  in  his  hands  on  which  this  judg- 
ment could  in  any  event  attach.  I  suppose  the  truth  to  be,  that. 
John  Latourette,  failing  to  become  the  purchaser  by  the  com- 
plainant outbidding  him  on  the  day  of  sale,  now  seeks  by  his 
judgment  and  execution  to  step  in  and  oblige  the  complainant  to 


259  CASES  IK  CIIAtfCEKY, 


Hoagland  v.  Latourette  et  al. 


pay  his  debt,  iostead  of  applying  the  balance  of  the  purchase  mo- 
ney, after  paying  the  inciftnbrances,  to  liquidate  the  complain- 
ant's own   demand.     This  would  be   manifestly  unjust   and 
against  good  faith  and  the  understanding  of  the  parties  at  the  time. 
I  think  the  complainant  is  entitled  to  have  the  injunction  made 
perpetual  with  costs,  and  I  shall  make  such  decree  accordingly. 
Injunction  perpetual,  with  costs. 

CITED  in  Force  v.  Dutcher,  2  C.  E.  Gr.  168 ;   Haughwaut  r.  Murphy, 
7  C.  E.  Gr.  546. 


"WILLIAM  EDGAR  v.  SAMUEL  CLEVENGEE  and  others. 

A  general  creditor  having  fil'  d  his  bill  for  relief  against  a  judgment  confessed 
by  his  debtor,  as  fraudulent ,  was  permitted,  after  a  decree  pro  confesso 
ngiiinst  the  defendants,  and  an  esparto  h  aring  iipoa  tho  evidence,  to 
filo  a  supplemental  bill,  in  order  to  incorporate  in  the  record  the  facts, 
that  after  the  commencement  of  his  suit  in  this  court,  the  complainant  ob- 
tained a  judgment  and  sued  out  execution  at  law.* 

A  judgment  and  execution  creditor  may  question  in  this  court  the  validity  of 
an  antecedent  judgment  at  law. 

Tho  declaration  of  a  judgment  creditor,  that  hi  {judgment  is  confessed  to  keep 
another  creditor,  who  ia  seeking  to  obtain  judgment,  out  of  his  money,  and 
i  hat  if  such  creditor  had  not  sued,  the  judgment  wo  Id  not  have  been  con- 
f  ssed,  coupled  with  proof  that  thejudgmer.t  creditor  is  a  man  of  no  prcpar- 
ty,  is  iu  sufficient  to  overcome  direct  proof  of  the  consideration  of  the  judg- 
ment. 

An  injunction  will  issue  at  the  instance  of  an  execution  creditor  to  restrain  the 
deb.  or  ia  execution,  and  a  prior  execution  creditor,  from  selling  or  removing 
any  of  the  personal  property  levied  on,  unless  by  sale  under  the  exo  uiion, 
until  the  second  execution  is  satisfied. 

BILL  for  injunction  and  relief,  filed  August  1st,  1834.  The 
bill  states,  that  Joseph  Wilkinson  and  "William  "Wilkinson,  on 
the  24th  of  January,  A.  D.  1823,  executed  a  mortgage  npon 

•  NOTE.  A  creditor  at  large,  or  before  judgment,  to  not  entitled  to  the  inter* 
feroaoo  of  this  court  by  injunction,  to  prevent  hl»  debtor  from  i  isro»ing  of  hl» 
property  in  fraud  of  the  creditor.  Viigyint  v.  Armitrong,  a  J.  O.  B.  l-i4,- 
Jltndnckt  v.  Jtobinton,  7  Wd,  808;  Mitjord't  PI.  115;  Cooper'*  Eq.  PL  149 


OCTOBER  TEEM,  1839.  259 

Eflgnr  v.  Clevenger  et  nl. 

certain  lands  in  the  township  of  Woodbridge,  to  secure  the  pay- 
ment of  two  thousand  seven  hundred  dollars  due  from  them  to 
the  compainant  upon  bond.  Some  time  in  January,  1824,  be- 
fore the  mortgage  debt  became  due,  Samuel  Clevenger,  one  of 
the  defendants,  purchased  the  equity  of  redemption  in  said  mort- 
gaged premises,  and  greatly  impaired  the  complainant's  security 
by  cutting  and  consuming  the  wood  and  timber  upon  the  premis- 
es, and  using  the  soil  in  the  manufacture  of  bricks.  He  also  a»- 
sumed  the  payment  of  the  mortgage  debt,  and  after  the  purchase 
of  the  equity  of  redemption,  became  indebted  to  the  complainant 
in  the  further  sum  of  eight  hundred  dollars,  upon  his  personal 
responsibility,  without  other  security.  At  June  term,  1834,  the 
defendant,  Alexander  Adams,  recovered  judgment  in  the  Mid- 
dlesex pleas  against  Clevenger,  for  three  hundred  dollars,  upon 
which  execution  was  issued.  At  the  same  term  of  June,  the 
complainant  commenced  suit  against  Clevenger,  for  the  moneys 
duo  from  him  to  the  complainant.  On  the  15th  of  September, 
1834,  Clevenger  confessed  judgment  to  one  Israel  Wilkinson,hia 
brother-in-law,  for  four  hundred  and  seventy-four  dollars  and 
eighty-six  cents,  upon  which  execution  issued  to  the  sheriff  of 
Middlesex ;  by  virtue  whereof,  the  sheriff  advertised  Clevenger'g 
personal  property  for  sals  on  the  1st  day  of  October,  1834.  The 
bill  charges,  that  Wilkinson's  said  judgment  was  entered  up  by 
fraud  and  collusion,  in  order  to  defraud  the  complainant  of  his 
debt,  and  that  no  part  of  said  money  was  due  and  owing  from 
Cloven ger  to  Wilkinson.  That  Clevenger  possessed  but  a  small 


Anyettv  Draper,  I  Vemon,  393;  Shirley  r.  Fort*.  3  JUynt,  200;    Ltnnet  ». 
Vuey,  ten  51;  I  P.  W.  445.    See  DugdaU  r.  Shertr,  po»t. 

•  Chancery  has  power  to  a«*Ut  •  Judgment  creditor  to  reach  the  property  of  h'§  debtor; 
but  iu  or  cr  to  «:i  title  tu  •  c. editor  to  relirf  in  equity,  BO  far  as  aflecta  the  pert  ruJ  proper- 
ty of  t'ue  debtor,  he  must  havo  eued  oat  execution  at  law,  and  acquired  a  lien  on  the  good* 
and  chattels,  at  the  timeofulirg  his  bill,  or  at  least  before  issue  joine  I  lath  •  court 
H.-interho/v.  Broim.  4  J.  C.  R.  Kl,  «73;  WMiamt  T.  Brown,  4  Hid,  CS2;  X'Dermuttv. 
Strong,  4  Ibid,  £87. 

Tbe  same  principle  prevails  it  law.     Wintrinoham  •.  Winirirwhar*,  SO  J.  S. 
v  Brown,  1  UarriMH,  3C4. 


SCO  CASES  IN  CHANCERY, 

Edgar  v.  Clevenger  et  al. 

amount  of  personal  property,  not  sufficient  to  satisfy  the  execu- 
tions against  him ;  and  that,  after  the  levy  under  Wilkinson's 
execution,  with  his  knowledge  and  assent,  Clevenger  disposed  at 
private  sale  of  a  considerable  amount  of  his  personal  property. 
The  bill  prays,  that  Wilkinson's  judgment  may  be  set  aside  as 
fraudulent,  and  that  an  injunction  may  issue  to  restrain  Cleven 
ger  from  committing  waste  on  the  mortgaged  premises ;  to  re- 
strain "Wilkinson  and  Clevenger  from  selling  any  of  the  personal 
property  levied  on  by  virtue  of  the  aforesaid  executions ;  and  also 
to  restrain  the  sheriff  from  selling  any  of  said  property  under 
Wilkinson's  execution,  or  from  proceeding  thereon  until  the  fur- 
ther order  of  the  court.  Clevenger,  Israel  Wilkinson,  Alexan- 
der Adams,  and  the  sheriff  of  Middlesex,  are  made  parties  de- 
fendants to  the  bill.  An  injunction  was  issued  upon  filing  the 
bill,  restraining  waste  upon  the  mortgaged  premises. 

At  January  term,  1835,  a  decree,  pro  confesso,  was  taken 
against  all  the  defendants,  and  the  complainant  was  ordered  to 
produce  evidence  to  substantiate  and  prove  the  allegations  in  his 
bill.  Under  this  order,  depositions  on  the  part  of  the  complain- 
ant were  taken  and  filed.  The  cause  came  on  for  hearing  at 
April  term,  1835,  in  the  presence  of  the  counsel  of  the  complain- 
ant, before  chancellor  Yroom.  At  July  term,  1835,  the  chan- 
cellor, by  his  order,  directed  that  the  complainant  bo  at  liberty 
to  file  a  supplemental  bill,  "  for  the  purpose  of  incorporating  in 
the  record  of  the  case  important  facts  that  have  traspirecl  since 
the  commencement  of  the  suit,  viz.:  that  the  complainant  has  ob- 
tained a  judgment  and  sued  out  execution  in  the  action  at  law 
mentioned  in  the  original  bill." 

On  the  25th  September,  1835,  the  complainant  filed  a  sup- 
plemental bill,  setting  out,  in  addition  to  tho  facts,  stated  in  his 
original  bill,  that  in  the  term  of  December,  1834,  he  recovered 
judgment  in  tho  Middlesex  pleas  against  Samuel  Clevenger,  in 
his  suit  mentioned  in  tho  original  bill,  for  two  thousand  three 
hundred  and  one  dollars,  damages,  besides  costs  of  suit,  and  that 
execution  issued  thereupon  to  the  sheriff  of  the  county  of  Mid- 
dlesex, who,  by  virtue  of  the  said  execution,  levied  upon  all  tho 


OCTOBER  TERM,  1839.  261 

Edgar  v.  Clevenger  <  t  eL 

personal  property  of  Clevenger,  which  had  been,  previously  le- 
vied upon  by  virtue  of  the  execution  in  favor  of  Israel  "Wilkin- 
son, and  subject  to  said  levy. 

An  answer  was  filed  by  Clevenger  and  "Wilkinson,  setting 
forth  the  consideration  of  the  bond  given  by  Clevenger  to  "Wil- 
kinson, denying  the  fraud  charged  in  the  bill,  and  insisting  up- 
on Wilkinson's  rights  under  his  judgment.  The  bill  was  taken 
«s  confessed  against  the  other  defendants. 

The  cause  came  on  for  final  hearing  upon  the  bill,  answer,  re- 
plication and  proofs. 

F.  B.  CTietwood,  for  complainant. 
Lupp,  for  defendants. 

THE  CHANCELLOR.  The  principal  object  in  this  cause  is  to 
set  aside,  as  fraudulent,  a  judgment  entered  by  confession  in  the 
court  of  common  pleas  of  the  county  of  Middlesex,  on  the  5th 
of  September,  1834,  against  Samuel  Clevenger,  in  favor  of  !&• 
rael  "Wilkinson,  for  four  hundred  and  seventy-four  dollars  and 
eighty-six  cents.  The  complainant  has  a  judgment  of  a  later 
date  against  the  same  defendant  for  a  large  sum,  on  which  ho 
has  taken  out  execution  and  levied  on  the  same  property  covered 
by  the  execution  issued  on  the  judgment  in  favor  of  "Wilkinson. 
He  therefore  stands  in  a  position  to  question  the  validity  of  the 
antecedent  judgment,  and  his  complaints  must  be  heard  and  de- 
cided. The  charge  in  the  bill  is,  that  Clevenger  confessed  this 
judgment  to  "Wilkinson,  his  brother-in-law,  without  considera- 
tion, to  defraud  the  complainant  out  of  his  debt,  and  to  prevent 
his  recovering  his  money  on  his  execution. 

The  defendants,  "Wilkinson  and  Clevenger,  have  put  in  a 
joint  answer.  They  deny  the  fraud,  and  say  that  Clevenger 
was  justly  indebted  to  "Wilkinson  at  the  date  of  the  judgment  to 
the  amount  for  which  it  is  entered  up.  That  he  was  embarrass- 
ed in  his  circumstances,  and  it  was  seen  his  property  must  all  be 
swept  away ;  and  that  "Wilkinson,  with  the  view  of  saving  his 


232 


Edgar  v.  Clevenger  et  al. 


debt,  and  gaining  priority  over  other  creditors,obtained  this  judg- 
ment. They  state  the  consideration  to  have  been  as  follows : — • 
In  the  year  1823,  "Wilkinson  sold  to  Clevenger  a  number  of  cat- 
tle, and  various  farming  utensils,  for  which  he  gave  him  three 
promissory  notes.  One  of  these  notes  "Wilkinson  parted  with, 
and  retained  the  other  two  until  the  2d  of  February,  1829,  on 
which  day  the  amount  of  principal  and  interest  then  due  on  said 
two  notes  was  found  to  be  two  hundred  and  two  dollars  and 
fifty-five  cents,  and  Clevenger  gave  him  a  bond  for  that  sum. 
That  Clevenger  was  indebted  to  one  Thomas  Marsh,  and  was 
prosecuted  for  it,  and  in  May,  1833,  the  suit  was  settled  and  the 
money  paid  by  "Wilkinson,  and  to  secure  him  Clevenger  gave 
him  his  note  for  one  hundred  and  ninety  dollars,  that  being  the 
amount  he  paid  for  him.  They  both  swear  that  at  the  date  of 
the  judgment  the  amount  of  the  aforesaid  bond  and  note  remain- 
ed unpaid,  and  that  the  same  constituted  the  consideration  for 
which  it  was  given. 

There  is  nothing  in  this  statement  extraordinary,  or  that  could 
lead  to  any  suspicion  as  to  its  truth ;  and  if  true,  the  considera- 
tion of  the  judgment  is  fully  made  out.  It  must  be  borne  in 
mind  that  this  part  of  the  answer  is  responsive  to  the  bill.  It  is 
charged,  that  the  judgment  is  fraudulent  and  without  considera- 
tion. The  defendants  were  called  upon  not  merely  to  negative 
this  charge,  but  to  state  what  the  consideration  was.  But  tho 
defendants  have  not  rested  their  case  upon  the  answer  alone. 
By  the  evidence  of  Moses  Martin,  they  have  proved  the  selling 
of  the  cattle  and  the  giving  of  the  bond.  This  witness  says  lie 
drew  the  bond,  and  it  was  for  the  amount  then  due  from  Cle- 
venger to  "Wilkinson.  The  same  witness  also  proves  the  settle- 
ment by  "Wilkinson  for  Clevenger,  of  the  suit  against  him  by 
Thomas  Marsh,  and  identifies  the  note  as  the  one  given  for  the 
amount  so  advanced  by  Wilkinson.  Judge  Nevius  also  testifies 
to  the  settlement  of  the  Marsh  suit  by  Wilkinson.  The  body 
of  the  note  he  thinks  is  in  the  handwriting  of  Mr.  Chetwood, 
who  was  the  attorney  of  Marsh. 

In  opposition  to  all  this,  the  complainant  has  offered  a  single 


OCTOBER  TERM,  1839.  2Cf 

Edgar  y,  Clevenger  et  al, 

witness,  Alexander  Adams.  He  states  that  Wilkinson,  the  daj 
after  his  judgment  was  confessed,  said,  that  it  was  done  to  keep 
or  cheat,  the  complainant  out  of  his  money.  And,  after  using  * 
very  harsh  and  unbecoming  expression  respecting  the  complain 
ant,  said,  since  he  had  sued  Samuel  they  had  fixed  a  judgment 
and  if  he  had  not  sued  him  the  judgment  would  not  have  beer 
confessed,  Wilkinson  is  further  proved  to  be  a  man  of  no  pro- 
perty. 

With  a  judgment  sustained  as  to  consideration  as  this  is,  the 
evidence  is  entirely  insufficient  to  overcome  it.  I  do  not  doubt 
that  Mr.  Adams  has  related  truly  the  conversation  he  heard ;  but 
it  is  evident  that  Wilkinson  was  in  a  passion,  and  was  boasting 
of  the  precedence  he  had  gained  over  the  complainant  The 
right  of  one  creditor  to  gain  a  preference  for  his  own  debt  bj 
judgment  over  every  other,  is  lawful,  and  sanctioned  by  con- 
tinual practice.  Upon  this  part  of  the  case,  the  complainant 
has  failed  to  establish  the  charges  made  in  the  bill,  and  Wil 
kinson  must  be  allowed  to  proceed  unmolested  with  his  execu 
tion. 

If  this  was  all  the  case,  the  bill  should  be  dismissed  with 
costs ;  but  there  are  other  matters,  though  not  so  material,  on 
which  the  complainant  is  entitled  to  relief.  As  against  Cleven- 
ger, he  is  entitled  to  have  his  injunction  from  the  commission  of 
waste  on  the  morgaged  premises  continued.  He  is  also  entitled 
to  liave  the  injunction  of  this  court  to  restrain  Clevenger  and 
Wilkinson  from  selling  or  removing  any  of  the  personal  property 
unless  by  sale  under  his  execution,  until  the  complainant's  debt 
is  satisfied.  The  conduct  of  both  Wilkinson  and  Clevenger  was 
in  this  respect  improper  and  illegal.  They  had  no  right  to  avail 
themselves  of  their  situation  to  have  any  part  of  the  defendant's 
property  sold  at  private  sale,  under  the  idea  that  thoy  would  af- 
terwards apply  it  to  satisfy  the  execution.  The  complainant  had 
also  an  execution,  and  had  a  right  to  what  remained  of  tho  de- 
fendant's property  after  satisfying  the  first  execution,  to  pay  off 
his  own.  This  was  done,  as  the  defendant  Wilkinson  admits, 
by  his  consent ;  though  he  says  tliat  he  thought  it  lawful.  How 


234  CASES  IK  CHANCERY, 

E.lgar  v.  Clsvenger  et  al. 

far  "Wilkinson's  execution  has  been  paid,  is  a  proper  matter  for 
enquiry  in  the  common  pleas  of  Middlesex. 

The  decree  will  be  signed  in  conformity  with  these  views,  and 
under  all  the  circumstances  I  shall  not  give  costs  to  either  party. 
Decree  accordingly. 

S«e  2  Gr  Ch.  258,  464. 

CITED  in  Owen  v.  Arvis,  2  Dutch  43 ;  Hunt  v.  Field,  1  Stock  41  ;    Young 

v.  Frier,  Id.  460 ;  Fleischman  v.  Young,  Id,  G22  ;   Oakley  v  Pound,  L 

McCar.  180  ;  Robert  v.  Hodges,  1  C.  E.  Gr  303 ;  Mittnight  v.  Smith. 

2C.R  #r.2GT;   Holdregev.  Gwynne,3   C.  E.  O.31;    Williams  v. 

Winans,  7  <7.  if.  £r.  581. 


STEPHEN  CKANE  v.  AAKON  BONNELL. 

Whero  an  absolute  deed  is  executed,  and  by  a  different  instrument  the  grantee 
agrees  to  re-convey  to  the  grantor,  upon  the  payment  of  a  stipulated  sum 
within  a  limited  period,  it  is  a  question  of  intention  whether  the  t.ausac.iou 
constitutes  sx  mortgage  or  a  conditional  Bale. 

To  ascertain  the  intention  cf  the  parties,  and  to  aid  it  in  the  fair  construction 
of  the  instrument,  the  circumstances  attending  the  transaction  may  be  re- 
sorted to. 

If  by  tho  transaction  the  parties  designed  to  create  a  mortgage,  the  time  fixed 
foe  redemption  is  immaterial.  If  once  tv  mortgage,  it  is  always  a  mortgage. 

But  if  tho  transaction  was  intended  as  a  sale,  with  nn  agreement  for  a  re- 
purchase within  n  given  time,  then  that  time  is  material. 

If  it  be  doubtful  whether  the  particular  transaction  constituted  a  mortgage,  or 
a  conditional  s  ile,  equity  regards  it  as  a  mortgage. 

The  samo  rule  obtains,  though  the  defeazance  rests  in  parol. 

If  the  defeazance  be  made  at  a  subsequent  day,  it  will  rela'.e  black  to  the  date 
of  the  deed. 

THE  bill  in  this  cause  was  filed  for  the  redemption  of  certain 
premises  conveyed  by  the  complainant  to  the  defendant,  by  deed 
dated  the  third  day  of  March,  1835.  The  deed  was  absolute 
upon  its  face.  On  the  6th  of  March,  1835,  three  days  after  the 
execution  of  the  deed,  tho  defendant,  by  a  written  instrument, 
leased  tho  premises  to  tho  complainant  for  one  year  at  a  stipu- 
lated rent,  and  agreed  tore-convey  the  same  to  the  complainant 
provided  he  should  pay  to  the  defendant  two  thousand  seven  hun- 
dred and  twenty-five  dollars  within  two  years  from  that  date. 
The  instrument  contained  a  further  stipulation,  that  if  tho  re- 
demption was  not  made  within  the  time  limited  for  that  purpose 


OCTOBER  TERM,  1839.  265 


Crane  v. 


the  privilege  should  cease.  The  answer  insists  that  the  deed 
was,  as  it  purports  to  be,  an  absolute  conveyance  in  fee,  and 
thq,t  the  subsequent  agreement  merely  gave  to  the  complainant 
the  right  of  re-purchasing  within  the  time  limited. 

The  cause  was  heard  upon  the  bill,  answer,  replication  and 
proofs. 

F.  B.  Chetwood  and  J.  J.  Chelwood,  for  complainant. 
B.  Williamson  and  T.  Frdinghuysen,  for  defendant. 

THE  CHANCELLOR.  The  complainant,  being  embarrassed 
in  his  circumstances,  in  March,  1835,  conveyed  to  the  defendant 
his  farm  near  Elizabeth-Town,  for  the  consideration,  as  express- 
ed in  the  deed,  of  two  thousand  seven  hundred  and  twenty-five 
dollars.  The  deed  is  absolute  on  the  face  of  it,  and  bears  date 
on  the  third  of  March,  eighteen  hundred  and  thirty-five.  It 
was  the  complainant's  homestead,  on  which  ho  had  resided  for 
many  years.  On  the  sixth  of  March,  three  days  after  the  date 
of  the  deed,  by  writing  under  his  hand,  the  defendant  leased  the 
same  premises  to  the  complainant  for  one  year,  at  the  rent  of 
one  hundred  and  twenty-five  dollars,  and  further  agreed  to  re- 
convey  the  property  to  the  complainant,  provided  he  should  pay 
him  the  aforesaid  sum  of  two  thousand  seven  hundred  and  twen- 
ty-five dollars  at  any  time  within  two  years  from  that  date,  with 
a  stipulation  that  if  such  redemption  was  not  made  within  the 
time  specified  the  privilege  should  end.  the  defendent  did  not 
pay  cash  for  the  property,  but  was  to  pay  off  the  mortgages  on 
the  place,  which  amounted  to  about  one  thousand  seven  hundred 
dollars,  and  to  assist  the  complainant  in  paying  off  executions 
and  debts,  which  were  then  pressing  upon  him. 

The  bill  charges  that  this  deed,  though  absolute  on  its  face, 
was  never  intended  by  the  parties  to  be  any  thing  more  than  a 
conveyance  in  the  nature  of  a  mortgage,  to  secure  the  defendant 
for  any  advances  he  might  make  for  the  complainant ;  and  sceks 
to  have  an  account  stated  between  the  parties,  insisting  that  no- 
35 


266  CASES  IN  CHANCERY, 


Crane  v.  Bonnell. 


thing  is  due  him  for  advances,  and  also  a  re-conveyance  of  the 
property. 

The  defendant,  in  his  answer,  denies  altogether  the  allega- 
tions of  the  bill  respecting  the  character  and  object  of  the  con- 
veyance, and  alleges  that  it  was  intended  to  be  what  it  purports 
on  its  face  to  be,  an  absolute  transfer  of  the  property  in  fee.  It 
might  be  difficult  from  the  parol  evidence  alone,  without  the  aid 
of  the  writings  between  them,  to  ascertain  what  was  the  original 
design  of  the  parties ;  but  I  am  very  clear,  whatever  may  have 
been  said  between  them  beforehand,  we  must  suppose  their  final 
understanding  was  expressed  in  the  writing  in  the  nature  of  a 
def eazance,  which  was  executed  by  the  defendant  on  the  sixth  of 
March.  It  is  to  that  mainly  we  must  look ;  and  it  is  only  in  aid 
of  its  fair  construction,  and  to  get  at  its  true  meaning,  that  the 
general  circumstances  attending  the  transaction  are  to  be  resort- 
ed to.  If  by  this  paper  the  parties  intended  nothing  more  than 
a  mortgage,  the  time  fixed  for  redemption  is  no  way  material.  If 
once  a  mortgage,  it  is  always  a  mortgage.  But  if  it  was  intend- 
ed to  be  a  sale,  with  an  agreement  for  a  re-purchase  within  a 
given  time,  then  that  tune  is  material.  The  distinctions  on  this 
subject  are  nice,  but  in  case  of  doubt  courts  of  equity  consider 
the  transaction  a  mortgage.  The  same  rule  obtains  although  the 
defeazance  rest  in  a  parol  agreement,  and  if  it  be  made  at  a 
subsequent  day  it  will  relate  back  to  the  date  of  the  deed.  Dix- 
on  v.  Parker,  2  Yes.  sen.  225 ;  Strong  and  others  v.  Stewart, 
4c  John.  Ch.  Rep.  167 ;  James  v.  Johnson,  6  Johns.  Ch.  Hep. 
420 ;  Robinson  v.  Cropsey  and  others,  2  Edwards'  Ch.  Rep. 
138 ;  4  KenCs  Com.  141-3 ;  Slee  v.  Manhattan  Company^ 
1  Paige,  56 ;  Marks  v.  Pell,  1  John.  Ch.  Rep.  598. 

It  is,  then,  a  question  of  intention,  and  it  is  proper,  and  the  con- 
stant practice  of  the  court,  to  get  at  this  by  looking  not  only  at  the 
writing  itself,  but  into  any  extrinsic  circumstances  which  may 
throw  any  light  upon  it ;  and  upon  a  view  of  these,  taken  to- 
gether, I  am  well  satisfied  that  this  deed  must  be  treated  as  a 
mortgage. 

What  were  the  circumstances  under  which  the  complainant 


OCTOBER  TERM,  1839.  267 


Crane  v.  Bonncll. 


conveyed  his  estate  ?  He  was  hard  pressed  by  his  creditors,  was 
working  for  the  defendant,  who  professed  to  be  his  friend,  and 
who  in  behalf  of  the  complainant  had  actually  applied  to  Jacob 
(jr.  Crane  to  take  a  deed  from  the  complainant  to  prevent  his  be- 
ing turned  out  of  doors.  He  told  him  he  wished  him  to  take  the 
deed  and  hold  the  property  until  the  complainant  should  have 
time  to  pay  off  his  creditors,  and  not  have  his  property  sacrificed. 
Mr.  Crane  told  him  he  could  not  take  the  deed  as  he  had  enough 
other  business  to  attend  to,  but  advised  the  defendant,  as  the 
complainant  was  working  for  him,  to  take  the  deed  himself. 
This  conversation  was  only  the  month  before  the  date  of  the 
deed.  To  Periam  Price  the  defendant  said,  he  was  going  to 
take  this  deed  to  save  himself  for  what  he  might  advance  for 
complainant ;  he  said  it  was  to  secure  as  well  his  further  ad- 
vances as  what  he  then  owed  him.  William  M.  Crane,  the 
complainant's  son,  who  has  always  lived  on  the  farm  with  him, 
says,  that  before  the  deed  was  given  he  heard  the  defendant  tell 
his  father  that,  in  order  to  relieve  himself  from  embarrassment, 
he  ought  to,  make  a  deed  of  his  property  to  some  person,  until 
ho  could  have  time  to  turn  himself;  and  after  the  deed  was  giv- 
en, he  heard  the  defendant  say  that  he  took  the  deed  as  security 
for  any  money  he  might  advance  for  his  father. 

The  possession  has  always  remained  in  the  complainant,  and 
the  whole  course  of  the  negotiations  with  the  complainant's  cre- 
ditors carry  out  the  idea,  not  of  the  defendant's  assumption  of 
the  debts  himself,  but  of  his  acting  as  a  friend  desirous  of  pre- 
venting the  complainant's  entire  destruction.  "We  hear  of  no  of- 
fering of  the  property  by  the  complainant  at  the  time  for  abso- 
lute sale ;  and  in  fact  Mr.  Jacob  G.  Crane  states,  that  an  applica- 
tion was  made  to  him  in  the  spring  of  eighteen  hundred  and 
thirty-five,  which  is  the  time  the  deed  was  given,  to  buy  the  pro- 
perty for  three  thousand  five  hundred  dollars,  which  is  seven 
hundred  and  seventy-five  dollars  more  than  the  consideration 
stated  in  the  defendant's  deed,  and  the  witness  says  the  property 
was  worth  the  three  thousand  five  hundred  dollars.  The  terms 
of  the  agreement  also,  so  far  as  they  form  any  criterion,  spcuk 


268  CASES  IN  CHANCERY, 


Craise  v.  Bonnell. 


of  it  as  a  redemption  of  the  property  within  a  specified  time, 
•\v;ith  a  proviso,  using  very  much  the  language  of  a  mortgage. 

From  all  these  considerations,  I  cannot  regard  the  transac- 
tion otherwise  than  as  constituting  a  mortgage.  From  the  evi- 
dence, I  must  believe  such  was  the  intention  of  the  parties.  In 
this  court  the  rule  has  been  laid  down  very  strong  and  explicit 
in  favor  of  considering  these  contracts  in  the  light  of  mortgages. 
In  Youle  v.  Richards,  Saxton,  537,  the  chancellor  says, 
''"Whenever  it  can  be  clearly  shown  to  be  the  intention  of  the 
parties  that  real  estate  when  conveyed  shall  be  subject  to  redemp- 
tion, it  is  considered  as  a  mere  security,  and  the  right  of  redemp- 
tion cannot  be  confined  to  a  limited  time,  or  to  a  particular  class 
of  persons." 

But  treating  this  as  a  case  of  a  sale  with  a  condition  for  a  re- 
purchase, as  contended  for  by  the  defendant's  counsel,  the  com- 
plainant might  redeem  by  paying  back  the  consideration  money 
at  any  tune  before  the  sixth  of  March,  eighteen  hundred  arid 
thirty  seven,  by  the  terms  of  the  contract.  It  is  shown  that 
the  defendant  admitted,  that  sometime  previous  to  the  eighth  of 
March,  eighteen  hundred  and  thirty-seven,  complainant  had  call- 
ed on  him  for  a  deed,  and  applied  for  a  settlement  of  accounts, 
which  he  refused.  It  is  further  proved,  that  when  the  complain- 
ant demanded  a  deed,  on  the  eighth  day  of  March,  eighteen 
hundred  and  thirty-seven,  he  told  the  defendant  that  he  was 
able  to  pay  him  for  all  he  had  paid  for  him,  and  was  ready  to  do 
BO.  It  would  seem  that  the  complainant  had  been  trying  before 
this  to  get  his  accounts  settled  with  the  defendant,  but  could  not. 
The  defendant,  it  is  evident,  meant  if  possible  to  hold  the  pro- 
perty, and  did  not  wish  to  have  it  redeemed.  There  was  on  this 
point  much  jarring  between  the  parties. 

The  complainant  insists  that  he  owes  the  defendant  nothing 
on  the  score  of  advances,  but  has  paid  him  by  his  labor  and  in 
other  ways  more  than  he  ever  paid  for  him.  The  consideration 
money,  we  know,  was  not  paid  by  the  defendant  in  cash,  bui 
was  to  be  made  up  by  his  future  advances.  Under  such  facts, 
it  seems  to  me  that  the  complainant  lias,  for  all  substantial  pnr 


OCTOBER  TERM,  1839.  2G9 


Cra  :6  v.  Bounell 


poses,  complied  with  the  strict  terms  of  the  agreement  for  re- 
demption within  the  time  fixed. 

Upon  cither  construction,  therefore,  of  this  agreement,  I  con- 
eider  the  complainant  entitled  to  redeem  his  farm  upon  paying 
the  defendant  for  his  advances ;  and  for  that  purpose  an  account 
must  be  stated  by  a  master  between  the  parties,  as  prayed  in  tho 
bill.  All  other  matters  are  reserved. 
Decree  accordingly. 

CITED  in  Vanihrliaize  v.  Siiahe*.  2  Bern.  245  ;  Crane  v.  DeCamn.  G  C. 
&  Or.  417. 


ABRAHAM    J.  BEERY  v.    The  Executors  of  ISAAC  J.   "VAJT 
WINKLE,  deceased. 

Upon  a  bill  for  the  specific  performance  of  an  agreement  contained  ina  IOOHC, 
that  at  the  expiration  of  tho  term,  the  improvements  mado  on  tho  demised 
premises  by  tho  lessee,  a  all  remain  the  property  of  tho  lessor  on  making 
tho  lessee  a  fair  compensation  for  tho  same;  tho  court  will  entertain  juris* 
diction  though  tho  bill  be  purely  for  compensation  and  damages,  provided  a 
specific  performance  may  be  decreed,  and  the  complainant  can  have  ade- 
quate relief  only  in  equity. 

Ihe  charge  for  improvements  made  upon  the  property  by  tho  lessee,  under  the 
terms  of  Kuch  an  agreement,  is  iu  equity  a  lien  on  the  property. 

Tho  coi  rt  will  not  extend  its  jurisdiction  beyond  the  claim  of  the  lessee  for 
compensation  for  valuable  and  permanent  improvements  put  by  him  upon 
the  demised  premises,  and  which  pass  io  the  lessor  at  tho  expiration  of  his 
term ;  and  will  not  suffer  a  claim  for  alleged  infringements  of  tho  rights  of 
the  Icsse  *  during  his  term,  to  be  drawn  iu  question. 

THE  bill,  filed  on  the  23d  of  March,  1835,  states,  that  Isaac 
J.  Van  "Winkle,  in  his  life,  executed  to  one  James  Buckley,  a 
lease  of  a  certain  saw-mill  and  premises  in  the  township  of 
Aquackcnonk,  in  the  county  of  Bergen.  By  the  lease,  which 
is  dated  on  the  7th  of  March,  1814,  Isaac  J.  Yan  Winkle  leases 
the  premises  to  James  Buckley  for  twenty-one  years,  commen- 
cing on  the  first  day  of  May,  1814,  upon  the  yearly  rent  of  forty 
dollars ;  and  it  was  in  and  by  the  said  lease  covenanted  and 
agreed,  that  the  said  James  Buckley,  his  executors,  adininistra- 


270  CAGES  IX  CHANCERY, 

B:  rry  v.  Ex'rj  of  Van  Winkle. 

ors  or  assigns,  might  at  any  time  during  the  said  term,  at  liis  or 
their  own  costs  and  charges,  erect  a  carding  and  fulling  mill,  and 
any  other  machinery  upon  the  premises.  Van  "Winkle  further 
agreed  to  let  Buckley  have  the  privilege  of  getting  from  off  Van 
Winkle's  land  as  many  stones  as  might  be  necessary  to  erect  the 
buildings  to  the  first  story,  and  to  complete  the  mill-dam,  Buckley 
being  at  the  sole  expense  thereof.  It  was  further  agreed,  that 
Buckley  should  have  the  privilege  of  extending  the  mill-dam  as 
far  as  Yan  "Winkle's  land  extended,  the  dam  to  remain  the  pro- ' 
perty  of  Yan  "Winkle  at  the  expiration  of  the  lease,  without  any 
compensation  to  Buckley  therefor.  It  was  also  agreed  between 
the  parties,  that  at  the  expiration  of  the  term,  all  the  improve- 
ments made  on  the  lot  should  be  and  remain  the  property  of  Yan 
Winkle,  he  paying  to  Buckley  the  value  thereof,  or  satisfying  him, 
his  heirs  or  assigns  for  the  improvements  so  made  thereon,  and  if 
they  could  not  agree  as  to  the  value  of  the  improvements  made 
on  the  premises,  then  the  improvements  were  to  be  valued  by 
two  impartial  men  chosen  by  the  parties,  and  if  they  could  not 
agree  they  were  to  make  choice  of  a  third  parson,  and  the  sum 
awarded  by  any  two  of  thorn  to  b3  final  and  conclusive,  unless 
Yan  "Winkle  renewed  the  lease  for  twenty-one  years  at  the  same 
rent  of  forty  dollars  per  annum.  All  taxes  and  assessments  up- 
on the  premises  during  the  term  were  to  be  paid  by  Buckley.  On 
the  18th  of  July,  1828,  Buckley,  having  erected  a  saw-mill  and  a 
woolen-mill  with  machinery  upon  the  premises,  assigned  the  said 
lease,  with  all  his  interest  in  the  demised  premises,  unto  James 
Arthur.  On  the  29th  day  of  July,  1830,  all  the  interest  of 
James  Arthur  in  the  said  demised  premises  having  been  levied 
upon  by  virtue  of  an  execution  issued  against  him,  was  sold  by 
the  sheriff  of  the  county  of  Bergen  to  the  complainant,  for  three 
hundred  and  fifty  dollars,  and  a  deed  bearing  date  on  the  26th 
of  January,  1832,  was  duly  executed  to  the  complainant  in  pur- 
suance of  said  Bala  On  the  1st  of  August,  1830,  the  complain, 
ant  entered  into  possession  of  said  premises,  and  held  the  same 
as  the  tenant  of  Yan  "Winkle,  performing  all  the  covenants  that 
were  to  be  performed  by  Buckley,  until  the  month  of  May,  1832. 


OCTOBER  TERM,  1839.  271 

Berry  v.  Ex'rs  of  Van  Winkle. 

On  the  14th  day  of  July,  1831,  Van  Winkle  and  wife,  by  deed 
bearing  date  on  that  day,  conveyed  to  the  Paterson  and  Iludson 
river  railroad  company  a  part  of  the  said  demised  premises,  (in- 
cluding a  part  of  the  mill-pond,)  at  the  abutment  of  the  dam,  and 
•ipon  which  the  dam  could  be  most  conveniently  extended,  and 
from  which  all  necessary  materials  could  be  procured  according 
to  tiie  terms  of  the  lease.  By  the  construction  of  the  railroad, 
and  the  making  of  the  necessary  excavations,  by  said  company, 
the  windings  of  the  streams  by  which  the  pond  was  supplied 
with  water  were  intercepted,  and  their  courses  changed,  whereby 
the  mills  were  deprived  of  their  usual  supply  of  water,  and  the 
complainant  was  unable  to  remedy  the  evil  by  the  means  grant- 
ed to  him  in  the  lease,  without  exposing  himself  to  an  action  by 
the  railroad  company,  for  overflowing  the  land  above  the  dam 
conveyed  to  them  by  Yan  "Winkle.  Soon  after  the  conveyance 
to  the  railroad  company,  Yan  Winkle  died,  having  duly  execu- 
ted his  last  will  and  testament,  and  appointed  his  wife  Caty,  and 
Cornelius  G.  Yan  Riper  and  Garret  G.  Oldis,  executors  thereof, 
who  proved  the  will.  The  complainant  continued  to  pay  rent 
for  the  premises  until  May,  1832,  and  he  has  always  been  ready 
to  settle  for  the  rent  since  that  time,  according  to  the  terms  of 
the  lease,  upon  a  fair  allowance  being  made  for  the  privileges  of 
which  he  was  deprived  as  aforesaid,  of  which  the  executors  had 
due  notice.  The  executors  refused  to  comply  with  the  offer,  and 
threatened  the  complainant  with  an  ejectment  unless  the  rent 
specified  in  the  lease  was  paid  without  abatement ;  and  at  Sep- 
tember term,  1834,-  an  action  of  ejectment  was  instituted  against 
the  complainant,  at  the  instance  of  Caty  Yan  Winkle,  executrix 
as  aforesaid,  to  dispossess  the  complainant  of  the  demised  prem- 
ises, by  reason  of  the  non-payment  of  the  aforesaid  rent.  Upon 
a  fair  settlement  of  the  claim,  and  an  allowance  to  the  complain- 
ant for  the  damage  sustained  by  him  in  consequence  of  the  sale 
by  Yan  Winkle  to  the  railroad  company,  no  rent  whatever  was 
due  for  the  premises  at  time  of  the  commencement  of  the  ac- 
tion of  ejectment 

The  lease,  by  its  terms,  expired  on  the  7th  day  of  March, 


272  CASES  IN  CHANCEEY, 

Berry  v.  Ex'rs  of  Van  Winkle. 

1835,  but  the  executors  of  Yan  "Winkle  have  made  no  offer  to 
renew  the  lease,  or  to  have  the  improvements  valued.  Some 
days  after  the  expiration  of  the  lease,  the  complainant  having 
furnished  each  of  the  executors  with  a  copy  of  that  part  of  tho 
lease  containing  the  covenants  binding  on  each  party  at  the  ex- 
piration of  the  term,  requested  that  they  would  appoint  some 
persons  to  value  the  improvements,  and  to  do  what  of  right 
chould  be  done  between  the  parties,  according  to  the  terms  of  tho 
lease,  but  the  executors  have  failed  to  comply  with  the  complain- 
ant's request,  or  to  give  him  any  satisfaction  in  the  premises ;  the 
executrix  replying,  "  that  she  would  have  her  rent  before  she 
would  do  any  thing." 

The  bill  prays  that  the  executors  may  be  decreed  to  perform 
the  covenants  in  the  lease  on  their  part  to  be  performed ;  that  it 
be  referred  to  a  master  to  take  an  account  of  the  rent,  and  to  ap- 
prove a  proper  person  as  surveyor  to  make  a  survey  of  the  prem- 
ises mentioned  in  the  lease,  and  the  improvements  thereon,  and 
of  such  part  of  said  premises  as  conveyed  to  the  Paterson  and 
Hudson  river  railroad  company ;  and  that  the  master  take 
an  account  of  the  yearly  value  of  that  part  of  the  premises  so 
conveyed  to  said  company ;  and  ascertain  the  damages  sustain- 
ed by  complainant  by  reason  of -the  deprivation  of  the  privileges 
aforesaid,  and  give  credit  therefor  upon  the  amount  of  rent 
ascertained  by  him  to  be  due  the  executors  ;  that  a  receiver  be 
appointed  to  take  charge  of  the  premises,  and  that  an  injunction 
issue  to  restrain  proceedings  at  law  touching  the  matters  in  con- 
troversy. 

On  filing  the  bill  an  injunction  issued,  as  prayed  for ;  and  on 
the  20th  of  April,  1835,  an  order  was  made  for  the  appointment 
of  a  receiver. 

The  executors,  by  their  answer,  filed  on  the  ICth  of  July, 
1S35,  admit  the  lease  from  Van  "Winkle  to  Buckley,  the  transfer 
of  Buckley's  interest  to  the  complainant,  and  his  possession  of 
the  demised  premises,  as  set  forth  in  the  bill  of  complaint. 
They  also  admit  the  agreement  made  by  Van  Winkle  with  tho 
Paterson  and  Hudson  river  railroad  company,  and  the  convey- 


OCTOBER  TERM,  1839.  273 

Berry  v.  Ex'rs  of  Van  Winkle. 

ance  of  a  part  of  the  demised  premises  to  said  company,  as 
charged  in  the  bill.  They  state  that  said  company  is  a  corpora- 
tion created  by  the  legislature  of  the  state  of  New-Jersey,  and 
that  by  their  charter  they  were  authorized  to  construct  their  rail- 
road as  located  over  the  demised  premises,  without  the  consent 
or  agreement  of  Van  Winkle ;  and  that  previous  to  any  agree- 
ment made  for  that  purpose  by  Van  "Winkle,  the  company  had 
laid  out  arid  located  their  railroad  over  tho  demised  premises,  af- 
terwards conveyed  to  them  by  Van  Winkle,  as  they  had  by 
their  charter  full  right  to  do.  They  deny  that  any  part  of  tho  . 
land  so  conveyed  to  the  railroad  company  was  covered  by  tho 
pond  or  dam,  or  that  the  construction  of  the  road  in  any  wiso 
interfered  with  the  extension  of  the  dam.  They  admit  that  tho 
company  took  possession  of  the  land  conveyed  to  them  and  con- 
structed their  road,  as  charged  in  the  bill,  but  deny  that  tho 
company  used  any  stone  or  materials  which  the  complainant,  un- 
der the  lease,  was  entitled  to  use  in  the  extension  of  tho  dam, 
or  that  the  road  interfered  with  the  supply  of  water  in  the  pond. 
They  admit  tho  death  of  Van  Winkle,  the  probate  of  lib  will, 
and  that  certain  improvements  have  been  made  upon  the  prem- 
ises, which  by  the  terms  of  the  lease  were  to  be  left  upon  tho 
premises  upon  certain  conditions,  at  the  expiration  of  the  term.. 
They  admit  the  payment  of  rent  up  to  the  month  of  May,  1832,. 
as  charged  in  the  bill,  and  the  notice  alleged  to  be  given  by 
the  complainant  to  the  executors,  but  deny  the  right  of  the  com-, 
plainant  to  any  deduction  from  the  rent  since  accrued  on  account, 
of  damages  alleged  to  be  sustained  by  the  complainant,  find  any 
admission  of  such  right  by  the  executors  or  either  of  them.. 
They  admit  that  an  action  of  ejectment  was  commenced  in  tho- 
supreme  court  at  the  term  of  September,  1834,  by  Caty  Van  Win-, 
klc,  as  devisee  for  life  of  said  premises,  under  the  will  of  tho  caid; 
Isaac  J.  Van  Winkle,  but  not  as  executrix,  and  that  said  fiction,  \ 
was  brought  to  dispossess  the  complainant  of  the  premises  by 
reason  of  his  non-payment  of  the  rent  due  for  said  premises; 
They  insist  that  they  are  entitled  to  receive  the  rent  without  any 
deduction  ;  that  the  complainant,  by  neglecting  and  refusing  to 


274  CASES  IK  CHANCERY, 

Berry  v.  Ex'rs  of  Van  Winkle. 

pay  the  rent  had  forfeited  all  right  to  said  premises  under  the 
lease,  and  was  liable  to  be  ejected  therefrom  ;  and  that,  after  the 
commencement  of  the  action  of  ejectment,  they  declined  entering 
into  any  negotiation  with  the  complainant  relative  to  his  improve- 
ments on  the  premises,  as  they  were  advised  such  negotiation 
would  operate  as  a  waiver  of  the  forfeiture  upon  which  the  eject- 
ment was  brought* 

The  cause  came  on  for  final  hearing  upon  the  pleadings  and 
proofs. 

Gifford  and  A.  Wkitehead,  for  complainant. 
J.  Speer  and  /.  H.  Williamison,  for  defendants. 

THE  CHANUELLOE.  Isaac  J.  Yan  Winkle,  in  his  life-time,  and 
on  the  7th  of  March,  1814,  leased  to  James  Buckley,  for  the  term 
of  twenty-one  years,  a  saw-mill  and  premises  in  the  county  of  Ber- 
gen. By  this  lease  it  was  agreed  that  the  lessee  or  his  assigns  might, 
at  any  time  during  the  demise,  at  his  own  cost,  erect  a  carding  and 
fulling-mill,  or  any  other  machinery,  upon  the  demised  premises, 
and  at  the  expiration  of  the  lease  that  all  improvements  made 
thereon  should  belong  to  the  lessor,  he  paying  for  the  same.  If 
the  parties  could  not  agree  on  their  value,  the  improvements 
wore  to  be  fairly  estimated  by  two  impartial  men  chosen  by  them, 
and  if  the  two  men  so  chosen  could  not  agree  they  were  to  chooso 
a  third,  and  the  amount  fixed  by  any  two  of  them  was  to  bo 
binding,  unless  the  lessor  should  renew  the-  lease  at  the  same 
rate  for  twenty-one  years  longer.  It  was  further  agreed,  that 
tho  lessee  might  get  from  the  land  of  the  lessor  as  many  stones 
as  would  be  necessary  to  erect  the  buildings  to  the  first  story,  and  to 
complete  the  mill-dam ;  and  in  case  he  desired  to  extend  the  dam, 
ho  was  at  liberty  to  do  so  to  the  extent  of  the  lessor's  land,  tho 
Barno  to  belong  to  the  lessor  at  the  end  of  tho  lease  without  any 
compensation  therefor. 

The  complainant  represents  by  purchase  and  legal  transfer,  tli3 
original  lessee  in  this  lease,  and  the  defendants  are  the  personal 


OCTOBER  TEEM,  1839.  273 

B-rry  v.  Ex'rs  of  Van  Winkle. 

representatives  of  the  lessor.  Improvements  have  been  placed 
on  these  premises  under  the  lease,  for  which  the  party  is  entitled 
to  compensation.  The  bill  was  filed  after  the  lease  expired,  and 
seeks  the  aid  of  the  court  to  procure  compensation  for  the  im- 
provements, by  compelling  the  defendants  to  fulfil  their  agree- 
ment in  respect  to  the  same,  and  also  damages  for  various  other 
alleged  breaches  of  the  covenants. 

It  is  alleged  that,  by  a  sale  by  the  lessor  of  certain  of  his 
lands  to  the  Paterson  and  Hudson  river  railroad  company,  while 
the  lease  was  running,  for  the  construction  of  their  road,  the 
complainant  was  damnified  by  being  cut  off  from  his  usual  sup- 
ply of  water,  by  being  deprived  of  his  facilities  in  procuring 
gravel  and  stone  for  erecting  his  dam,  and  from  extending  his 
dam  as  he  desired  to  do. 

The  question  now  to  be  settled  is,  whether  this  court  will  grant 
any  relief,  and  if  so,  to  what  extent.  If  it  was  a  new  question, 
and  resting  upon  general  principles  alone,  I  should  bo  strongly 
inclined  to  refuse  all  interference,  and  leave  the  parties  to  their 
remedies  at  law.  The  lease  expired  before  the  suit  was  brought, 
and  therefore  the  bill  is  purely  for  compensation  and  damages, 
and  the  courts  of  law  are  able  and  better  able,  through  the  inter- 
vention of  a  jury,  to  ascertain  and  settle  what  amount,  if  any, 
is  due  from  one  party  to  the  other.  In  all  cases  resting  in  dam- 
ages only,  it  is  certainly  more  in  accordance  with  our  system  of 
jurisprudence  that  they  should  be  ascertained  at  law,  where  a  jury 
can  pass  upon  them,  and  the  witnesses  are  seen  and  examined 
in  open  court.  But  a  rule  has  been  settled  on  this  subject  to 
which  I  shall  adhere,  without  pressing  any  further  the  jurisdic- 
tion of  the  court  .The  cases  of  Dcnton  v.  Stuart,  1  Cox.  258 ; 
of  Greenaway  v.  Adams,  12  Vesey,jun.  395,  and  of  Phittiw 
v.  Thompson,  1  Johns.  (Th.  Rep.  131,  all  sustain  the  principle 
cf  giving  relief  by  way  of  damages  on  a  bill  for  a  specific  per- 
formance, when  the  defendant  has  placed  it  out  of  his  power  to 
make  a  conveyance  of  the  specific  property.  Chancellor  Kent, 
however,  in  two  later  cases.  Hatch  v.  Cobb,  4  Johns.  Ch.  Rep. 
559,  and  KempshaU  v.  Stone,  5  John*.  Ch.  Rep.  194,  refused 


576 


Berry  v.  EX'JS  of  Van  Winkle. 


to  make  a  decree  for  damages  where  no  specific  performance 
could  be  had,  on  the  ground  that  this  court  ought  not  to  exercise 
jurisdiction  in  such  case  except  under  very  special  circumstances. 
The  cases  (which  will  be  found  somewhat  contradictory  on  this 
point)  are  referred  to  in  a  note  in  2  Story's  Eguity,  108.  In 
the  present  case  I  shall  entertain  jurisdiction  to  the  extent  settled 
in  this  court  in  the  case  of  Copper  and  others  v.  Wells  and  others, 
Saocton,  10.  That  case  was  in  many  respects  like  the  present ;  the 
lease  had  expired  when  the  bill  was  filed,  and  valuable  improve- 
ments had  been  put  on  the  premises  which  were  to  be  paid  for  by 
the  lessor.  The  chancellor  granted  his  aid  expressly  on  the  ground 
that  the  complainant  could  only  have  adequate  relief  in  this  court. 
This  charge  for  improvement  is,  in  equity,  a  lien  on  the  property. 
If  driven  to  his  remedy  at  law,  the  complainant  might  entirely 
lose  his  claim. 

While  this  case  establishes  a  rule  by  which  compensation  may 
be  obtained  in  this  court  for  permanent  improvements  placed  on 
leased  premises,  it  by  no  means  sanctions  the  whole  relief  sought 
in  this  case,  and  I  am  not  disposed  to  go  farther.  There  is  a 
peculiarity  in  the  claim  of  a  lessee  for  compensation  for  valuable 
and  permanent  improvements  which  pass  to  the  lessor  at  the  expi- 
ration of  the  lease,  but  there  is  no  good  reason  why  this  claim 
for  alleged  infringements  on  his  rights  during  the  whole  term, 
should  be  drawn  in  question  in  this  court. 

It  was  objected  that  the  complainant  had  not  entitled  himself 
to  relief,  as  he  was  bound  first  to  have  sought  the  appointment 
of  indifferent  persons,  under  the  provisions  of  the  lease,  to  settle 
the  amount.  "Without  examining  into  whose  duty  it  was  to 
have  taken  the  first  steps  in  this  business,  the  answer  discloses 
enough  to  remove  the  objection.  It  is  there  admitted  that  the 
complainant,  shortly  after  the  lease  expired,  did  apply  to  the  de- 
fondants  and  request  that  he  might  be  paid  for  his  improvements, 
and  that  he  was  told  they  would  do  nothing  until  the  rent  was 
paid.  The  defendants  clearly  put  an  end  to  any  negotiation 
respecting  the  improvements  until  the  rent  should  be  paid,  and 


OCTOBER  TERM,  1839.  277 

Berry  v.  Ex'rs  of  Van  Winkle. 

they  cannot  now  set  op  that  the  offer  was  not  made  to  arbitrate 
respecting  the  amount. 

I  shall  refer  the  case  to  a  master  to  ascertain  the  value  of  the 
improvements  at  the  termination  of  the  lease,  and  the  amount 
due  the  defendants  for  rent,  to  the  end  that  a  final  decree  may 
be  made  for  the  amount  due  the  complainant  after  deducting 
the  rent  As  to  the  other  damages,  for  which  the  aid  of  the 
court  is  asked,  I  shall  leave  the  parties  to  their  legal  remedies. 
Reference  to  a  master.- 

See  later  decision,  1  Or,  Ch.  390. 

CITED  t»  Conovcr  v.  Smith,  2  6'.  K  Gr.  64. 


The  Administrators  of  SAMUEL  J.  READ,  deceased,  v.  CHARLES 
CRAMER  and  ISAAC  CRAMER. 

The  owner  of  a  tr^.ct  of  land,  with  the  boundaries  of  which  he  was  r.nao- 
quainted,  caused  it  to  be  surveyed,  run  off  into  different  lots,  aud  a  map 
made,  preparatory  t  a  sale  at  auction.  On  the  day  of  sale  the  mop  was 
exhibited,  and  the  property  sold  according  to  the  map.  A  deed  was  prepar- 
ed by  the  vendor,  according  to  the  map,  for  one  of  the  lots,  sold  for  a  fif- 
teen, acre  tract  more  or  less;  but  the  description  afterwards,  and  before  the 
execution  of  the  deed,  was  altered  by  the  vendor,  at  the  iustauce  of  the  pur- 
chaser, who  was  well  acquainted  with  the  premises,  and  who  alleged  t.  at 
the  deed  us  originally  prepared  did  uot  cover  all  the  land  pur  chased  by  him. 
1  he  effect  of  the  alteration  in  the  description  was  to  pass  twenty -seven  acres 
to  the  purchaser  not  included  in  the  plot  or  map  exhibited  at  the  sale,  and 
which  the  vendor  did  not  know  belonged  to  him.  The  court  decreed,  thut 
the  vendee  should  re-convey  to  the  heirs  of  the  vendor,  all  the  land  exceed- 
ing the  fifteen  acres  as  described  in  the  map  by  which  the  sale  was  ma<lo, 
and  should  paj  the  unual  value  thereof  from  the  time  he  took  \  osoessioa 
under  t~e  deed. 

It  is  among  the-  first  principles  of  a  court  of  equity  to  correct  mistake*  and  to 
prevent  parties  being  injured  in  their  property,  and  especially  in  their  free- 
hold, by  any  misapprehension  or  concealment  of  material  circumstances. 

Bill  filed  for  relief  on  the  ground  of  fraud;  relief  granted  on  the  ground  of  mis- 
take. 

BILL  for  relief  filed  September  23d,  1836.    The  bill  was  ori 
ginally  filed  in  the  name  of  Samuel  J.  Read,  in  his  lif  e-time,  and 


2T8  CASES  ENT  CHANCERY 

Adm'rs  of  Read  v.  Cramer  et  al. 

the  suit  was  continued  in  the  name  of  his  administrators  after 
his  death.  The  bill  states,  that  in  the  year  1834,  all  the  real 
estate  of  Charles  Loveland,  in  the  township  of  Little  Eggharbor, 
in  the  county  of  Burlington,  containing  three  hundred  acres  more 
or  less,  was  sold  by  the  sheriff  of  said  county,  by  virtue  of  an 
execution  issued  out  of  the  court  of  chancery,  upon  a  decree  of 
foreclosure,  and  that  the  complainant,  having  become  the  pur- 
chaser of  the  whole  of  the  said  real  estate  at  the  said  sale,  a 
deed  therefor  was  executed  to  him  by  the  sheriff,  and  the  com- 
plainant thereupon  entered  into  possession  of  the  premises.  That 
on  the  5th  of  May,  1835,  the  complainant  offered  the  said  prem- 
ises for  sale  at  public  auction,  having  first  caused  a  map  or  draft 
thereof  to  be  made  by  a  surveyor ;  and  on  the  day  of  sale,  among 
other  parcels,  he  offered  for  sale  by  the  acre  a  piece  of  salt-marsh 
or  meadow,  as  represented  upon  said  map,  containing  fifteen 
acres,  and  caused  it  to  be  publicly  proclaimed  that  the  said  lot, 
as  represented  on  the  map,  would  be  sold  for  fifteen  acres,  and 
whether  it  contained  more  or  less,  the  purchaser  should  pay  for 
that  quantity.  That  the  lot  so  exposed  to  sale  was  cried  off  to 
Charles  Cramer,  one  of  the  defendants,  at  the  rate  of  twenty 
dollars  and  five  cents  per  acre,  amounting  in  the  whole  to  the 
sum  of  three  hundred  dollars  and  seventy-five  cents;  who 
thereupon,  in  compliance  with  the  conditions  of  sale,  by  a  me- 
morandum endorsed  on  the  conditions,  acknowledged  himself  to 
be  the  purchaser  at  the  price  aforesaid.  That  the  complainant 
and  his  wife  made  and  executed  a  deed  for  the  said  fifteen  acres, 
as  described  upon  the  said  map,  and  had  it  ready  for  delivery 
on  the  fourth  Tuesday  of  May,  1835,  when  by  the  conditions 
of  sale  the  deed  was  to  be  delivered ;  on  which  day  the  said 
Charles  Cramer,  accompanied  by  his  father,  Isaac  Cramer,  call- 
ed to  receive  the  deed.  On  reading  over  the  description  to  Charles 
Cramer,  as  contained  in  the  deed  and  drawn  upon  the  map,  he 
guggested  a  change  in  the  description  which  would  render  the 
boundary  more  satisfactory,  and  avoid  controversy  with  the  ad- 
joining proprietors,  who  were  contentious  men ;  whereupon  the 
description  was  altered  to  meet  the  views  of  the  purchaser,  and 


OCTOBER  TERM,  1839.  279 

Adm'rs  of  Bead  v.  Cramer  et  ah 

a  new  deed  drawn,  executed  and  delivered.  That  soon  after- 
wards the  complainant  was  informed  that  he  had  been  deceived 
by  the  purchaser,  and  that  the  tract  as  described  in  the  deed,in 
stead  of  fifteen  acres,  contained  near  fifty.  That  the  complain 
ant  thereupon  caused  the  said  tract  to  be  surveyed,  and  ascer- 
tained that  it  contained  forty-two  acres,  being  twenty-seven 
acres  more  than  were  intended  to  be  conveyed.  That  the  com- 
plainant was  unacquainted  with  the  boundaries  of  the  tract  pur- 
chased, and  from  the  looseness  and  generality  of  the  description 
contained  in  the  sheriffs  deed  to  him,  he  was  unable  to  ascer- 
tain the  same ;  and  that  the  surveyor  who  run  out  and  mapped 
the  tract  preparatory  to  the  sale  by  complainant,  and  who  lived 
in  the  neighborhood,  was  misinformed  as  to  the  extent  of  the 
complainant's  title,  and  did  not  include  in  his  map  apart  of  the 
land  owned  by  complainant,  and  which  by  the  change  of  de- 
scription was  included  in  the  deed  from  the  complainant,  to 
Charles  Cramer.  That  the  deed  was  executed  by  the  complain- 
ant and  his  wife  to  Cramer  with  the  intention  and  expectation  of 
conveying  fifteen  acres,  as  described  upon  the  map,  whereas,by 
the  false  and  fraudulent  representations  of  the  defendants^  was 
made  to  convey  forty-two  acres;  and  that  all  that  part  of  the  mea- 
dow exceeding  fifteen  acres,  was  obtained  by  fraud  and  false  rep- 
resentations, and  without  any  consideration  whatever.  That 
complainant  has  offered  either  to  repay  the  purchase-money  and 
receive  a  re-conveyance  for  the  premises  described  in  the  deed,or 
to  confirm  the  conveyance,upon  the  purchaser  paying  for  the  ex- 
cess the  price  at  which  he  purchased  the  fifteen  acres,  both  of 
which  offers  were  declined  by  the  purchaser. 

The  bill  prays,  that  the  deed  may  be  rectified  according  to 
the  true  intent  and  meaning  o,f  the  parties,  or  declared  inopera- 
tive and  void  as  to  the  excess  over  fifteen  acres  as  described  upon 
the  map ;  or  that  the  said  Charles  Cramer  may  be  decreed  either 
to  pay  for  the  excess  of  twenty-seven  acres  at  the  rate  of  twenty 
dollars  and  five  cents  by  the  acre, with  interest  from  the  date  of 
the  purchase,  or  to  re-convey  the  said  excess  to  the  complainant, 
and  to  satisfy  him  for  the  proceeds  thereof  converted  by  the  said 


2SO 


Adm'i  s  cf  Resvd  v.  Cramer  et  al. 


Charles  Cramer  to  his  own  use  from  the  date  of  the  deed ;  the 
value  to  be  ascertained  by  a  master  of  the  court. 

The  answer  states,  that  the  lot  in  dispute  on  the  day  of  sale 
was  offered  as  "  a  lot  of  marsh  or  meadow  land,  bounded  b_y 
Wading  river,  the  thoroughfare,  and  Isaac  Cramer's  line  on  the 
marsh,  supposed  to  contain  fifteen  acres  more  or  less,"  and  "\7£3 
so  bid  for  and  bought  by  the  defendant,  Isaac  Cramer.  That 
the  deed  as  executed  conveys  the  land  included  within  said  boun- 
daries, and  no  more.  That  no  map  whatever  of  the  premises 
was  exhibited  to  the  defendants,  nor  did  they  or  either  of  them 
see  any  map  upon  the  day  of  sale,  or  hear  any  description  of 
the  premises  except  as  aforesaid.  The  answer  admits  that  tlio 
alteration  in  the  description  of  the  property  contained  in  the  deed, 
was  made  at  the  instance  of  the  defendants,  and  that  the  dee  I 
r.f  tcr  the  alteration  conveyed  more  land  than  was  included  in  the 
description  as  originally  drawn,  but  insists  that  the  alteration 
was  made  in  accordance  with  the  description  given  on  the -day  of 
sale,  and  denies  that  any  fraud  was  practised,  or  false  represen- 
tations made  in  relation  thereto  by  the  defendants. 

The  cause  came  on  for  final  hearing  at  July  term,  1839,  upon 
the  bill,  answer,  replication  and  proofs. 

J.  Wilson,  for  complainants.  This  bill  is  brought  for  relief 
against  a  deed  conveying  land,  on  the  ground  that  the  deed  is 
not  in  accordance  with  the  contract  of  sale.  The  land  sold  ia  a 
tract  lying  within  certain  bounds  specified  in  the  bill,  and  it  was 
sold  for  fifteen  acres  more  or  less ;  whereas  the  deed  convoyed 
not  only  that  tract,  but  also  about  twenty-seven  acres  more,  nofc 
included  within  those  bounds,  but  lying  adjoining.  The  bill  al- 
leges that  the  variance  between  tjio  deed  and  the  contract  w&3 
produced  by  certain  representations  of  the  defendants  made  with 
intent  to  deceive  and  defraud  the  grantor. 

The  deed  is  variant  from  the  contract ;  it  does  not  carry  out 
the  intention  of  the  parties,  nor  execute  the  contract  it  was  in- 
tended to  execute.  Equity  will  therefore  correct  it  according  to 


OCTOBER  TERM,  1839.  201 


Adm'rs  of  Rend  v.  Cramer  etal. 


the  circumstances  of  the  case.  Hunt  v.  Rousmanierd  s  Adm?ry 
1  Peters'  Rep.  13. 

But  the  defendants,  by  their  answer,  allege  that  the  contract 
of  Bale  was  for  the  twenty-seven  acres  as  well  as  the  fifteen  acres  ; 
that  general  Read,  the  vendor,  in  making  the  contract,  used  a 
description  which  includes  the  whole,  and  that  therefore  the  deed 
18  coiTcct.  But  if  this  he  admitted,  the  complainants  are  still 
entitled  to  the  relief  they  seek.  For  from  the  evidence  it  is 
clear,  that  at  the  time  of  the  sale,  and  long  after,  general  Read 
did  not  know  that  he  owned  the  twenty-seven  acres,  but  believed 
that  his  whole  estate  there  was  tho  tract  of  fifteen  acres.  He  hcd 
never  seen  the  land,  and  when  he  used  the  description  and 
bounds  given  in  the  deed,  the  evidence  fully  shows  that  he  be- 
lieved that  those  were  the  bounds  of  the  fifteen  acres,  and  that 
lie  also  believed  he  owned  no  more  land  there.  If,  therefore,  the 
position  of  the  defendants  be  true,  that  general  Read  sold  other 
lands,  yet  it  is  plain  that  he  did  so  under  a  mistake,  and  an  en- 
tire misapprehension  of  his  rights.  In  such  cases  equity  will  al- 
ways grant  relief.  Bingham  v.  Bingliam,  1  Vcsey,  sen.  12G ; 
Evans  v.  Llewellyn,  2  Browrts  Ch.  R.  150;  Calverly  v.  Wil- 
liams, 1  Vesey,  211 ;  Hitchcock  v.  Giddings,  4  Prices  Exch* 
R.  135. 

Parol  evidence  is  admissible  to  show  mistake  in  a  deed,  as  well 
as  fraud.  Henkle  v.  Royal  Excliange  Co.  1  Ves,  sen.  317  ; 
Simpson  v.  Vaughn,  2  Atk.  31 ;  Gittespie  v.  Moon,  2  Johns. 
C.  It.  593  ;  Waslibum  v.  Merrill,  1  Day's  Cases  in  Error, 
139. 

Vroom,  for  defendants.  The  bill  seeks  relief  on  the  ground 
of  fraud.  J\  11  that  is  said  about  mistake  or  misapprehension, 
is  to  be  found  only  in  the  argument  of  counsel,  and  forms  no  part 
of  the  issue  between  tho  parties. 

The  defendants  insist  that  there  is  no  fraud  on  their  part, 
and  that  no  rel'ef  can  be  granted  on  that  ground. 

It  is  not  improbable  tint  there  has  been  a  mistake.  General 
Read  prob;  bly  conveyed  more  land  than  he  supposed  he  convey- 


282  CASES  IK  CHANCERY, 

Adm'rs  of  Head  v.  Cramer  efc  al. 

ed.  But  this  is  not  a  case  for  relief  in  equity.  The  principle  of 
the  cases  cited  on  the  other  side  is  not  denied,  but  they  do  not 
meet  this  case.  For  if  by  reasonable  diligence  a  party  might 
have  been  informed,  his  mistake  is  no  ground  of  relief  in  equity. 
1  Fonblanyue,  Book  I.,  chap.  iii.  sec.  3 ;  4  Johns.  C.  7?.  566  ; 
1  Story's  'Equity,  15T,  159,  160 ;  9  Vesey,  275 ;  3  Cases  in 
Chan.  56,  74,  103,  114. 

If  there  is  any  mistake  here,  it  was  not  occasioned  by  the  de- 
fendants, but  was  a  mistake  of  general  Head,  and  due  diligence 
on  his  part  would  have  corrected  it. 

/.  H.  Williamson,  for  complainants.  This  is  a  clear  case  of 
fraud  on  the  part  of  the  defendants,  as  appears  by  the  testimony 
ta&en.  But  even  if  there  were  no  fraud,  still  the  mistake  in  this 
case  is  sufficient  ground  of  relief.  Langley  v.  Brown,  2  Atk. 
203 ;  Baker  v.  Paine,  1  Vesey,  sen,  456 ;  Calverly  v.  Wil- 
liams, 1  Vesey,  210. 

These  cases  are  also  an  answer  to  the  position  of  the  defend- 
ats'  counsel,  that  there  has  not  been  due  diligence. 

If  a  bill  is  filed  for  relief  on  the  ground  Qi^  fraud,  relief  may 
be  granted  on  the  ground  of  mistake  if  a  proper  case  be  made 
out.  2  Cond.  Ezcheq.  Rep.  55 ;  2  Ball  and  Beatty,  152. 

THE  CHANCELLOR..  Samuel  J.  Read,  in  the  year  1833, 
purchased  at  a  sheriff's  sale  a  farm  at  Little  Eggharbor,  in  tJie 
county  of  Burlington.  The  property  formerly  belonged  to  Sam 
uel  Lovcland,  and  was  sold  under  a  decree  of  this  court  to  satis- 
fy certain  mortgages.  After  making  this  purchase,  general  Head 
determined  to  sell  off  the  property  in  parcels  at  auction,  and  for 
that  purpose  he  advertised  it  for  sale  in  the  spring  of  the  year 
1835.  Not  knowing  much  about  the  premises,  previous  to  the  day 
of  sale,  he  sent  Robert  Leeds,  a  surveyor,  to  run  out  the  land  and 
make  a  map  of  it ;  this  he  did,  and  furnished  the  map  to  general 
Read  before  the  time  fixed  for  the  sale.  On  this  map  there  is  a  tract 
lying  south  of  a  thoroughfare,  said  to  contain  about  fifteen  acres, 
which  at  the  auction  was  sold  to  Charles  Cramer,  one  of  the  de- 


OCTOBER  TERM,  1839.  283 


Adm'rs  of  Read  v.  Cramer  et  al. 


fendants ;  and  the  controversy  in  this  cause  relates  entirely  to  the 
sale  of  this  lot. 

The  bill  charges,  that  the  complainant  sold  this  lot  according 
to  the  map,  for  a  fifteen  acre  tract,  more  or  less,  and  with  the 
agreement  that  the  purchaser  should  pay  for  fifteen  acres  wheth- 
er it  turned  out  to  be  more  or  less.  That  after  the  sale,  he  made 
out  a  deed  according  to  the  map,  when,  by  the  fraud  and  misrep- 
resentation of  the  defendants,  he  was  induced  to  vary  the  de- 
scription of  the  premises,  and  besides  the  fifteen  acres  which 
ho  really  sold,  he  has  included  twenty-seven  acres  additional 
which  were  never  sold,  so  that  the  defendant,  instead  of  fifteen 
acres,  has  a  deed  of  forty-two  acres.  The  prayer  of  the  bill  is, 
that  the  deed  may  be  corrected,  or  that  the  defendant,  Cramer, 
may  re-convey  the  twenty-seven  acres  and  account  for  the  profits 
of  this  excess  of  land  during  the  time  he  has  possessed  it. 

The  answer  denies  that  any  such  map  was  exhibited  at  the 
sale,  or  that  the  defendant  bought  by  any  map,  and  on  the  con- 
trary insists  that  he  bought  the  land  by  certain  boundaries  which 
were  publicly  announced  by  the  complainant  at  the  time  of  the 
sale,  and  by  which  boundaries  he  is  entitled  to  all  the  forty-two 
acres  described  in  the  deed. 

There  is  a  mass  of  evidence  taken  in  the  cause,  agreeing  in 
many  particulars  but  widely  differing  in  others,  so  that  the  main 
difficulty  is  to  arrive  at  the  true  state  of  facts.  This  was  a  pub- 
lic sale,  and  at  the  distance  of  two  years  and  a  half  persons  at 
the  sale  are  called  upon  to  state  what  took  place.  In  such  cases 
it  will  always  be  found,  that  among  perfectly  upright  men  their 
stories  will  differ,  and  perhaps  materially.  I  deem  it  unnecessa- 
ry to  go  over  the  whole  evidence.  I  have  examined  it  carefully, 
and  shall  now  content  myself  with  stating  the  conclusions  to 
which  I  have  come,  and  the  principles  on  which  the  case  must  be 
decided. 

In  the  first  place.  I  consider  it  fully  made  out  by  the  evidence 
that  general  Read  sold  by  the  map.  The  answer  denies  that  any 
map  of  this  lot  was  exhibited  at  the  sale  to  the  knowledge  of  the 
defendant  who  purchased,  or  that  he  heard  of  any ;  but  that  the 


284  CASES  IN  CHANCERY, 

Admrs  of  Head  v.  Cramer  et  al. 

map  was  exhibited,  is  stated  by  almost  every  witness,  and  by 
some  of  them  it  is  said  that  at  the  time  the  defendants  were  not 
more  than  ten  or  twelve  feet  off.  The  defendants'  own  witnesses 
admit  that  the  map  was  exhibited  at  the  sale. 

It  is  very  manifest  that  general  Read  himself,  at  the  time  of 
the  sale,  did  not  know  the  extent  of  the  property  he  owned  there, 
lie  thought  he  owned  only  the  fifteen  acres,  or  thereabouts,  south 
of  the  thoroughfare,  when  in  truth  he  did  own  forty-two  acres, 
lie  had  purchased  the  entire  farm  a  short  time  before,  and  with 
out  uny  knowledge  of  the  metes  and  bounds  himslf,  had  sent  a 
surveyor  to  lay  off  the  land  for  sale  from  the  best  information  he 
could  derive  from  others.  The  surveyor  who  made  the  map  tes- 
tifies, that  he  only  put  on  the  map  the  fifteen  acres,  which  he 
supposed  the  extent  of  the  Samuel  Loveland  line.  And  this  was 
the  extent  of  the  line  for  a  period  of  forty  years,  but  Samuel  had 
bought  another  strip  of  Charles  Loveland,  which  carried  his  line 
down  to  Cramer's  land  and  the  ditch. 

In  the  second  place,  general  Read,  wThen  he  made  out  the  first 
deed,  made  it  from  the  map,  and  when  he  made  the  alteration 
in  the  description  in  the  second  deed,  he  did  so  from  the  informa- 
tion alone  which  he  derived  from  the  defendants,  and  from  the 
confidence  which  lie  reposed  in  them.  They  indeed  stated  to  him 
that  his  description  did  not  embrace  all  the  land  which  they  pur- 
chased, but  they  did  not  explain  to  him  in  an  open,  frank  man- 
ner, as  they  were  bound  to  do,  the  extent  they  claimed.  He  had 
no  idea  that  this  new  starting-place  in  the  description,  made  the 
difference  between  fifteen  and  forty-two  acres.  Had  they  so  ex- 
plained it,  his  eyes  would  have  been  opened,  and  the  deed  would 
never  have  been  executed  as  it  was. 

In  the  third  place,  although  the  evidence  is  contradictory  on 
this  point,  yet  from  the  fact,  that  the  defendants'  witnessess  swear 
positively  to 'it,  and  among  the  rest  the  auctioneer  himself,  and 
the  complainants'  witncsscss  only  speak  negatively  that  they  did 
not  hear  it,  I  must  believe  that  general  Read,  when  he  was  called 
upon  for  the  bounds  of  the  land  at  the  auction,  did  say  that  it 
bounded  on  the  thoroughfare,  Wading  river,  Cramer's  line  and 


OCTOBER  TERM,  1830.  285 


Adm'rs  of  Rend  v.  Cramer  ct  al 


others ;  and  that  he  particularly  mentioned  Cramer' 8  line.  But 
it  is  equally  certain  that  he  did  so  without  understanding  where 
Cramer's  line  was,  and  without  any  intention  of  going  beyond  the 
fifteen  acres  set  off  in  the  map. 

In  the  fourth  place,  as  the  land  was  ftoM  for  fifteen  acres,  more 
or  less,  although  general  Read  did  say  there  were  only  to  pay  for 
that  quantity  if  the  land  turned  out  to  be  more  or  less,  yet  the 
defendants,  as  reasonable  men,  could  never  have  supposed  that 
?»e  intended  in  a  sale  of  fifteen  acres  to  embrace  a  tract  of  forty- 
two  acres.  The  difference  was  too  great.  They  must  have  seen, 
as  other  witnesses  swear  they  did,  that  he  was  laboring  under  a, 
mistake  when  ho  declared  he  sold  to  Cramer's  line.  The  ex- 
pression he  used  was  clearly  intended  to  cover  a  miscalculation 
of  a  fraction,  or  a  few  acres  at  most :  it  never  could  have  been 
intended  to  cover  so  large  a  difference  as  twenty-seven  acres. 
The  defendants  resided  in  the  neighborhood  and  knew  all  about 
the  land,  and  general  Read  did  not. 

In  the  fifth  place,  the  price  at  which  the  land  sold  was  sufficient 
to  have  satisfied  the  purchaser  of  the  mistake.  The  land  sold 
was  worth  the  price  paid  per  acre,  and  could  the  defendants  have 
believed  they  were  to  receive  twenty-seven  acres  in  addition, 
\vorth  at  least  fifteen  dollars  per  acre  ?  This  was  enough,  surely, 
to  have  demanded  an  explanation  on  their  part. 

In  the  sixth  place,  the  offer  made  by  general  Read  when  he 
discovered  the  mistake,  was  a  perfectly  fair  and  reasonable  one. 
lie  said  in  substance,  By  your  directions  I  have  given  you  a 
deed  for  more  land  than  I  intended.  I  supposed  you  to  be  fair, 
honest  men.  You  must  re-convey  the  land  and  I  will  return 
you  what  yon  have  paid,  and  thus  put  an  end  to  the  whole  con- 
tract, or  you  must  pay  me  the  same  price  for  the  additional 
acres  that  you  paid  for  the  others,  or  I  shall  seek  my  redress  in 
the  courts  of  law.  The  defendants  refused  the  proposition,  and 
it  h  my  duty,  upon  this  state  of  facts,  to  settle  the  rights  of  these 
parties  according  to  the  principles  and  rules  of  this  court. 

If  this  land  was  sold,  as  I  believe  it  was,  from  the  map,  the 
twenty  seven  acres  were  not  in  it  at  all,  and  therefore  could  not 


286  CASES  Iff  CHANCERY, 


Adrn  rs  of  Read  v.  Cameron  et  al. 


have  been  sold.  "When  the  deed  was  made,  the  twenty-seven. 
acres  were  put  in  it  from  the  representation  alone  of  the  defend- 
ants and  from  the  confidence  reposed  in  them,  and  it  covers  that 
much  more  land  than  was  intended,  or  than  would  have  been 
put  in,  had  the  grantor  at  the  time  been  informed  of  all  the  cir- 
cumstances attending  the  case.  As  the  defendants  knew  the 
fact  that  the  alteration  in  the  description  would  take  in  this 
whole  tract,  they  should  have  so  explained  it  to  the  grantor. 

It  is  among  the  first  principles  of  a  court  of  equity  to  correct 
mistakes,  and  to  prevent  parties  from  being  injured  in  their  pro- 
perty, and  especially  their  freeholds,  by  any  misapprehension  or 
concealment  of  the  true  state  of  facts.  The  cases  are  numerous 
where  relief  has  been  afforded  under  like  circumstances.  Bing- 
ham  v.  Blnghamy  1  Vesey,  sen.  126  ;  Gee  v.  Spencer,  1  Ver- 
non,  32  ;  Evans  v.  Llewellyn,  2  Brown?  s  Oh.  151  ;  De  Rie- 
mer  v.  De  CantiUon,  4  Johns.  Ch.  88  ;  1  Story's  Eq.  159,  160 

Charles  Cramer  has,  in  my  opinion,  a  deed  for  twenty-seven 
acres  more  land  than  he  should  have,  and  I  shall  decree  a  re- 
conveyance from  the  him  to  the  heirs  at  law  of  general  Read,  for 
all  the  land  in  his  deed  beyond  the  fifteen  acres  described  on  the 
map  under  which  the  sale  was  made,  or  that  the  present  deed  be 
rectified,  as  may  be  most  convenient  for  the  parties,  the  result  be- 
ing the  same  in  either  case  ;  and  that  he  pay  the  annual  value  of- 
the  excess  from  the  time  he  entered  into  possession,  to  be  ascer- 
tained by  a  master.  The  bill  as  to  Isaac  Cramer  must  be  dis- 
missed, there  being  no  ground  for  a  decree  against  him. 

As  some  reason  was  given  by  the  course  of  general  Read  at 
the  auction,  for  the  purchaser  to  suppose  the  land  sold  bounded 
on  Cramer,  though  not  enough,  in  view  of  all  the  circumstances, 
to  justify  me  in  letting  him  hold  to  that  line,  I  do  not  think  he 
should  pay  costs.  The  decree  will  be  without  costs. 
Decree  accordingly. 


CITED  in  Graham  v.  Ifcrr^wian,  4  0.  E.  Or.  84  ;  Berryman  v.  Graham, 
0  0.  E.  Or.  878  ~~  "~        • 


OASES 

AWOXKHCD  or 

THE  COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW-JEESEY. 
JANUARY  TERM,  1840. 


CoBNELiua  OAKLEY  v.  EDWARD  O'NEILL  et  aL 

A  deci  co  pro  confesso  may  be  taken  at  any  time,  after  the  time  limited  for  the 
defendant  to  plead,  answer  or  demur,  has  expired.  It  may  be  taken  without 
notice,  and  as  of  course,  unless  it  appear  that  some  prejudice  will  thereby 
accrue  to  the  adverse  party. 

THE  object  of  the  bill  in  this  cause  was  to  avoid  a  conveyance 
as  fraudulent;  it  also  prayed  an  injunction.  At  January  term, 
1839,  an  order  was  made  upon  Daniel  O'Neill,  an  absent  de- 
fendant, to  appear,  &c.,  at  April  term,  also  the  usual  order 
for  publication.  Two  of  the  defendants  answered  the  bilL 
Daniel  O'Neill  having  failed  to  appear,  Mr.  A.  S.  Pennington*, 
now,  upon  proof  of  publication  of  the  rule  of  January,  1839, 
moved  for  a  decree  pro  confesso  against  him, 

K  B.  J).  Odgen,  contra,  objected,  that  the  complainant 
ought  to  have  applied  for  this  decree  at  April  term,  1839,  and 
Having  failed  BO  to  do,  he  is  not  entitled  to  the  decree  as  of 


283  -CASES  IK  CHANCERY, 

Oakley  v.  O;Neill  et  al. 

course,  nor  without  previous  notice  to  the  adverse  party.    This 
is  the  rule  at  law. 


THE  CHANCELLOR.  The  rule  contended  for  by  the  de- 
fendants' counsel  does  not  prevail  in  equity.  The- complainant 
is  entitled  to  his  decree,  at  any  time  after  the  rule  to  appear,  &c. 
has  expired,  and  it  will  be  granted  as  of  course  unless  it  appear 
that  some  prejudice  will  accrue  to  the  adverse  party. 
Motion  granted. 


WILLIAM  C.  MTJLFORD,  JOSEPH  LODGE,  junior,  and  MARY  A. 
DARE,  Adm'rs  of  SAMUEL  DARE,  v.  BENJAMIN  ALLEN-, 
surviving  Ex'r  of  BENJAMIN  ALLEN,  deceased. 

An  administratrix  cannot  bo  made  a  party  complainant  in  a  bill,  with  her  co- 
administrators,  without  her  consent;  and  if  she  claim  adversely  to  tho  pray- 
er of  the  bill,  tho  court  upon  motion  will  direct  her  nama  to  be  stricken 
from  the  bill  a^  a  complainant,  and  to  bo  inserted  ns  a  defendant. 

A  solicitor  employed  by  one  of  several  executors  or  administrators,  and  filing 
a  bill  in  the  nurno  of  all,  will  not  bo  compelled  to  pay  costs  although  the 
came  of  0110  of  tho  administrators  be  inserted  in  the  bill  of  complaint  with- 
out her  consent. 

BENJAMIN  Allen,  the  elder,  by  his  will,  bequeathed  a  certain 
legacy  to  his  daughter,  ]\Iary  A.  Dare,  the  wife  of  Samuel  Dare. 
The  bill  is  filed  for  the  recovery  of  said  legacy,  by  the  adminis- 
trators of  Samuel  Dare,  charging  that  the  legacy  had  been  re- 
duced into  possession  by  the  said  Samuel  Dare  in  his  life-time. 

I.  II.  Williamson,  on  behalf  of  Mary  A.  Dare,  one  of  tho 
administrators,  now  moved  to  strike  her  name  out  of  tho  bill  as 
a  complaint,  and  for  leave  to  insert  her  name  as  a  defendant 
in  the  bill,  upon  the  ground  that  her  name  had  been  used  without 
her  consent  as  complainant,  and  that  she  claimed  the  legacy  in 


JANUARY  TERM,  1840.  289 

Adm'rs  of  Dare  v.  Ei'r  of  Allen. 

her  own  right  as  survivor,  adversely  to  the  claim  of  her  hus- 
band's representatives.  He  insisted  that  it  was  not  necessary  that 
the  names  of  all  the  administrators  should  be  used,  and  that  her 
name  could  not  be  used  adversely  to  her  interest  without  her  con- 
sent. He  insisted  further,  that  where  a  person  wa9  made  a  party 
complainant  without  her  consent,  the  solicitor  of  the  complainan* 
must  pay  the  costs. 

Jeffers,  for  complainants,  contra.  Mary  A.  Dare  is  now  a 
party  to  the  bill.  Her  rights  are  not  prejudiced  by  being  made 
complainant.  The  court  will  protect  her  interests  if  she  is  en- 
titled to  the  legacy. 

THE  CHANCELLOR.  Mary  A.  Dare  has  been  made  a  com- 
plainant without  her  consent.  She  claims  adversely  to  the  prayer 
of  the  bilL  It  is  not  enough  that  the  court  will  protect  her  in- 
terests. She  has  a  right  to  stand  in  such  a  position  that  she  may 
set  up  her  claim  as  she  see?  fit  As  all  the  parties  are  before  the 
court,  there  can  be  no  difficulty  in  allowing  the  motion.  She 
must  be  made  a  defendant,  and  permitted  to  set  up  her  rights  in 
her  own  way.  The  rule  requiring  the  soh'citor  to  pay  costs  for 
making  use  of  a  party's  name  without  consent,  cannot  apply 
when  he  has  been  applied  to  by  one  of  several  executors  or  ad- 
ministrators, and  has  acted  in  the  name  of  alL 
Motion  allowed,  without  costs. 

[At  a  subsequent  day  in  term,  leave  was  granted  to  the  com- 
plainants, on  motion  of  their  solicitor,  to  amend  the  bill  accord- 
ingly.] 


290 


SAMUEL  GAKWOOD  v.  The  Administrators  and  Heirs  of 
"WILLIAM  ELDRIDGE. 

When  the  amount  in  controversy  is  small,  and  the  facts  can  be  Batisfactorily 
ascertained  in  this  court,  an  issue  at  law  will  not  bo  awarded. 

THE  bill  in  this  case  prayed  relief  against  the  legal  title  of  "Wil- 
liam Eldridge,  (tho  defendant's  intestate,)  to  the  premises  in  ques- 
tion. William  Eldridge  claimed  title  under  a  sheriff's  deed,  made 
by  virtue  of  a  judgment  and  execution  in  favor  of  Eldridge,  against 
Josiah  Smith.  It  appeared  by  the  bill  and  answer,  that  said  judg- 
ment had  been  entered  upon  a  bond  given  by  Smith  to  Eldridgo 
to  indemnify  him  for  any  monies  he  might  pay  as  security  for 
Smith  as  one  of  tho  constables  of  the  township  of  Evesham,  in 
the  county  of  Burlington.  The  cause  having  been  argued  upon 
the  merits  before  the  chancellor,  at  January  term,  1839,  a  decre- 
tal order  was  made*  referring  it  to  one  of  the  masters  of  the  court 
"  to  ascertain  and  report  what  were  the  amount  of  monies  actu- 
ally paid  by  the  said  "William  Eldridge  as  one  of  the  sureties  of 
Josiah  Smith,  late  one  of  the  constables  of  tho  township  of  Eves- 
ham,  in  the  county  of  Burlington,  and  for  which  the  bond  men- 
tioned in  the  said  order  was  given  as  security  or  indemnity  ;  and 
whether  the  whole,  or  any  part  thereof,  and  what  part  thereof, 
has  been  paid  by  the  said  Josiah  Smith,  or  any  other  person  for 
his  use  ;  and  whether  the  said  judgment  of  the  said  "William  El- 
dridge against  the  said  Josiah  Smith  has  been  paid,  and  if  paid 
when,  and  under  what  circumstances." 

The  master,  after  stating  certain  matters  which  appeared  in 
evidence  before  him,  (all  of  which  appear  by  the  bill,  answer  and 
original  testimony  in  tho  cause,)  reported  as  follows : — "And  I 
do  further  report,  that  there  has  not  been  produced  before  mo 
evidence  of  such  payment  to  the  said  "William  Eldridge  as  would 
.amount  to  a  legal  satisfaction  or  discharge  of  his  said  judgment, 
but  that  the  evidence  altogether  consists  of  facts  of  that  nature,  as 
•  Seo  the  case  ante.  115. 


JANUARY  TERM,  1340.-  291 

Garwood  v.  Adm'rs  of  Eldridge.  .. 

can  only  be  properly  submitted  to  and  determined  by  an  impartial 
jury,  in  order  the  better  to  inform  and  satisfy  the  conscience  of  the 
court  in  making  a  decree ;  and  I  do  therefore  report  to  the  chan- 
cellor, that  an  order  be  made  directing  a  feigned  issue,  to  try  the 
question  whether  the  judgment  obtained  by  the  said  "William 
Eldridge  against  the  said  Josiah  Smith,  on  the  said  bond'  of  in- 
demnity, has  been  paid  off  and  discharged  by  the  said  Josiah 
Smith,  or  by  any  person  to  his  use." 

To  this  report  exceptions  were  filed  by  the  complainant,  and 
the  cause  now  came  on  for  hearing  upon  the  exceptions.  The 
only  point  relied  upon  was,  that  there  was  nothing  in  the  case 
to  justify  the  awarding  a  feigned  issue — and  that  the  mas- 
ter ought  to  have  reported  definitively  upon  the  matter  refer- 
red to  him, 

II.  W.  Green,  for  defendants,  in  support  of  the  exceptions, 
cited  Le  Guen  v.  Goiwcmeur,  1  John.  Cos.  436;  Dale  T, 
Roosevelt,  6  J.  C.  12.  255 ;  Towsend  v,  Graves,  3  Paige, 
453 ;  Fornshitt  v.  Murray,  1  Bland,  485 ;  Trenton  Banking 
Co.  v.  Woodruff,  ante,  117;  Stafford  v.  Stafford,  Saxton, 
533* 

Watt,  for  complainant,  contra, 

Kinscy,  in  reply,  was  stopped  by  the  court* 

THE  CHANCELLOR.  The  case  is  too  clear  to  admit  of  argi£ 
ment.  There  is  nothing  in  the  case  to  warrant  the  awarding  of 
an  issue  at  law,  or  to  justify  the  court  in  avoiding  a  decision  of 
the  case  upon  the  evidence.  I  awarded  an  issue  in  the  case  of 

•  NOTE.  la  the  case  of  Stafford  v.  Stafford,  Scudon,  633,  afUr  the  deliv- 
ery of  the  opinion,  application  was  made  to  the  court  on  the  part  of  the  com- 
plminant  for  on  issue  at  law.  The  chancellor  (Vroom)  refused  the  application, 
but  stated,  that  if  the  evidence  had  led  to  the  conclusion  that  the  deed  in  qua»- 
tion  was  a  forgery,  he  would  not  have  pronounced  a  decree  involving  the  pa»- 
ty  in  a  criminal  charge,  without  the  intervention  of  a  jury,  bat  would  have 
awarded  an  issue  at  law. 


292  CASES  IN  CHANCERY, 

Garwood  v.  Adm'rs  of  Eidridge. 

the  Bank  v.  Woodruff,  with  great  reluctance.  But  there  tlie 
wholo  case,  which  was  of  considerable  moment,  turned  upon  a 
single  question  of  fact,  in  regard  to  wlrch  there  was  no  evidence 
before  me.  The  issue  there  was  a  matter  of  necessity.  Here 
the  amount  in  controversy  is  small,  and  the  facts  can  be  satisfac- 
torily ascertained  in  this  court.  The  report  must  be  Bet  aside,  and 
the  matter  referred  back  to  the  master. 
Order  accordingly. 


Exparte  Heirs  of  JOHN  YAN  YOKST.  , 

"When  tho  amount  awarded  to  be  paid  by  a  railroad  company  under  the  o«t  of 
incorporation,  for  land  taken  or  damages  done  by  thorn,  is  directed  by  the 
:  statute  to  be  paid  into  tho  court  of  chancery  for  thouso  of  tho  owner  or 
owners  of  tho  land,  no  notice  to  tho  company  is  necessary,  of  an  application 
by  the  o\rners,  for  an  order  upon  the  clerk  to  pay  over  the  money  BO  depo- 
sited. 

An  order  to  pay  over  the  money  BO  deposited  will  not  be  made,  without  a  re- 
ference to  a  master  to  ascertain  the  rights  of  the  applicants. 

THIS  was  an  application  by  the  heirs  of  John  Yan  Yorst,  for 
an  order  to  receive  certain  monies  deposited  in  the  hands  of  tho 
cleric  of  the  court,  by  the  New-Jersey  railroad  and  transportation 
company.  The  act,  entitled,  "  an  act  to  incorporate  tho  New- 
Jersey  railroad  and  transportation  company,"  (Harr.  Oomm.  379, 
%ec.  6,)  after  providing  a  mode  in  which  the  compensation  and 
damages  which  the  owners  of  real  estate  have  sustained  by  rea- 
son of  the  occupation  of  the  land  by  the  corporation,  shall  be  as- 
certained in  cases  of  disagreement  as  to  price,  enacts  as  follows  : 
"  And  in  case  any  owner  or  owners  of  such  land  or  real  estate  so 
appraised,  shall  be  feme  covert,  under  age,  non  compos  mentis, 
or  out  of  the  state,  then,  and  in  such  case,  the  said  corporation 
•hall  pay  the  amount  which  has  been  awarded  as  due  to  the  last 
mentioned  owners,  respectively,  into  the  court  of  chancery,  to 
tho  clerk  thereof,  subject  to  the  order  of  said  court,  for  the  use  of 


JANUARY  TEEM,  1840.  293 

Esparto  Heirs  of  John  Van  Vorst. 

the  said  owner  or  owners."    Under  this  provision  the  money  had 
been  paid  into  court,  the  owners  being  minors. 

J.  D.  Miller,  upon  the  petition  of  the  applicants,  setting  f  orth 
their  title  and  claim,  verified  by  affidavit,  applied  for  an  order 
upon  the  clerk  for  the  payment  of  the  sum  deposited  to  the  peti- 
tioners. No  notice  had  been  given  to  the  railroad  company  of 
the  application. 

THE  CHANCELLOR.  No  notice  is  necessary.  The  railroad 
company  have  no  interest  in  the  matter.  All  the  heirs  have 
joined  in  the  application.  It  must  be  referred  to  a  master  to  as- 
certain and  report  the  rights  of  the  petitioners,  before  an  order 
is  made  for  the  payment  of  the  money. 
Reference  to  a  master. 


CASES' 


THE  COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW-JEBSET. 
AFBIL    TERM,     1840. 


MAEGAKET  DECAMP  v.  JOSEPH  DECAMP. 

-  «•».  _  « 

A  charge  of  adultery,  and  a  charge  of  extreme  cruelty,  cannot  be  united  in  the 

same  bill. 
Nor  is  it  proper  to  blend  in  one  bill ,  an  application  for  a  divorce,  with  a  prayer 

f  r  independent  relief  grounded  on  charges  which  require  an  answer  under 

oath. 
A  bill  for  a  divorce  may  contain  a  prayer  for  alimony,  and  any  charge  mnde  in 

the  bill  respecting  property,   which  might  affect  the  question  of  alimony, 

would  be  proper. 

THE  bill  contained  charges  of  adultery  and  of  extreme  cruelty 
against  the  husband.  It  also  charges  that  Peter  Emley,  the 
father  of  the  complainant,  being  desirous  of  providing  for  herself 
and  her  children,  and  supposing  that  a  conveyance  of  land  di- 
rectly to  her  would  be  beyond  the  control  of  her  husband,  by 
deed  dated  the  fifth  day  of  March,  eighteen  hundred  and  thirty 
four,  in  consideration  of  natural  love  and  affection,  and  of  the 
sum  of  one  cent  to  him  paid,  conveyed  to  the  complainant  a 
farm  in  the  township  of  Mansfield,  in  the  county  of  Burlington 


APRIL  TERM,  1840.  203 

Decamp  v.  Decamp. 

containing  about  two  hundred  acres,  in  trust  that  she  should 
stand  seized  of  said  premises  during  her  natural  life,  and  tako 
and  receive  the  rents,  issues  and  profits  thereof,  to  and  for  hot 
own  use  and  benefit ;  and  that  from  and  immediately  after  the 
death  of  tho  complainant,  her  heirs  should  stand  seized  thereof 
for  the  use  of  all  her  children  living  at  her  death,  as  well  as  thosa 
born  at  the  execution  of  the  deed  as  those  that  might  be  born 
thereafter.  That  eoon  after  the  execution  of  said  deed,  the  de- 
fendant moved  upon  the  farm,  and  continued  to  receive  the  rents, 
iscues  and  profits,  and  to  maintain  himself  out  of  the  farm. 
That  ho  had  also  committed  waste  upon  the  premises  in  cutting 
down  the  young  timber  growing  thereon,  to  the  injury  of  the 
inheritance,  and  threatened  to  continue  such  waste  and  destruc- 
tion at  his  pleasure.  That  the  complainant,  by  the  conduct  of 
the  defendant,  had  been  compelled  to  leave  him.  That  he  ut- 
terly refused  to  support  her,  or  to  permit  her  to  receive  tho 
profits  of  the  farm ;  and  that  she  was  dependent  upon  the  kind- 
ness and  charity  of  her  friends  for  her  support.  The  bill  prays 
that  the  complainant  may  be  divorced  from  the  bond  of  matri- 
mony with  the  defendant ;  that  the  defendant  may  be  directed 
to  allow  her  a  proper  alimony ;  to  deliver  up  to  her,  or  to  some 
trustee  for  her,  to  be  appointed  by  the  court,  the  said  farm,  and 
to  account  for  all  the  rents  and  profits  thereof  since  the  com- 
plainant left  his  house ;  and  that  in  the  mean  time  he  may  be 
enjoined  from  cutting  wood  and  timber  on  the  premises  or 
committing  other  waste  thereon. 

<_? 

The  defendant  demurred  to  the  bill  formultifarioasiiess.  The 
cause  was  argued  upon  the  demurrer. 

n.  TF.  Green,  for  defendant,  in  support  of  the  demurrer, 
cited,  Cooprfa  Ey.  PL  182 ;  2  Madd.  Ch.  Prac.  294 ;  Ward 
v.  Duke  of  Northumberland,  2  Anstr.  4G9  ;  Da/oouc  v.  Fan- 
iilny,  4  J.  C.  12. 199  ;  Johnson  v.  Johnson,  0  J.  C.  It.  163  ; 
C  utch  v.  Clutch,  Saxtont  474. 

Wilson,  for  complainant,  contra.  -4 


29G  CASES  IN  CHANCERY, 

Decamp  v.  Decamp. 

THE  CHANCELLOR.  The  demurrer  to  this  bill  for  multifari- 
ousness  must  be  sustained.  It  is  a  bill  seeking,  first,  a  divorce 
a  men  so,  et  thoro,  for  extreme  cruelty ;  second,  a  divorce  a  vin~ 
culo  matrimonii,  for  the  cause  of  adultery ;  third,  calling  on 
the  defendant  to  deliver  up  to  the  complainant  a  certain  farm 
and  premises  conveyed  to  her  by  her  father,  and  to  account  for 
the  rents  and  profits  thereof ;  and,  fourth,  for  an  injunction  to 
restrain  the  defendant  from  the  commission  of  waste.  All  these 
several  matters  cannot  be  blended  in  one  bill.  It  would  tend  to 
utter  confusion,  and  be  embarrassing,  not  only  to  the  defendant 
in  making  his  defence,  but  to  the  court  in  decreeing  the  remedy. 

It  is  clear,  although  it  has  never  been  decided  in  this  court, 
that  a  party  cannot  in  the  same  bill  seek  a  divorce  for  extremo 
cruelty  and  for  adultery.  The  decree  is  very  different  in  the 
two  cases.  In  the  one  case,  the  parties  are  only  separated,  and 
that,  perhaps,  for  a  short  time  ;  in  the  other,  the  marriage  rela- 
tion is  dissolved,  and  the  parties  are  at  liberty  to  marry  again. 
The  defendant  jnight  be  surprized  by  a  bill  framed  with  these 
two  aspects,  and  be  left  in  entire  uncertainty  as  to  which  ground 
the  complainant  meant  ultimately  to  rest  on.  The  case  cited 
from  Saxtony  474,  shows  that  the  chancellor  only  tolerated  a 
bill  thus  framed  because  no  exception  had  been  taken  to  the 
proceeding,  and  the  reasoning  of  the  case  in  6  Johns.  Ch.  163, 
is  as  applicable  under  our  statute  as  under  the  statute  of  the 
state  of  New- York. 

To  blending  the  remaining  parts  of  this  case  with  the  appli- 
cation for  a  divorce,  there  is  an  additional  objection.  The  answer 
to  a  bill  for  a  divorce,  by  our  statute,  cannot  be  under  oath,  while* 
in  all  other  cases  it  must  be.  This,  upon  a  bill  framed  as  in  the 
case  before  the  court,  would  require  two  answers  to  one  bill— one 
under  oath  and  the  other  not  under  oath.  It  would  be  impossible 
to  conform  the  practice  of  the  court  under  our  statute  with 
miiting  these  various  and  independent  demands  in  the  same  bill, 
and  it  would  be  unwise  so  to  do,  if  it  was  practicable.  Nothing 
in  BO  calculated  to  create  embarrassment  in  ascertaining  rights 
as  to  throw  into  one  case  several  unconnected  causes  of  action. 


APHIL  TERM,  1840.  297 


Decamp  v.  Decamp. 


The  complainants's  -counsel  lias  insisted,  that  all  that  part  of 
the  bill  having  relation  to  property,  was  introduced  only  to  affect 
the  question  of  alimony.  But  such  is  clearly  not  tho  object ;  for 
the  prayer  asks  independent  relief  by  a  divorce — for  alimony — 
for  delivering  up  the  farm  and  premises — for  an  account  of  the 
rents  and  profits,  and  for  an  injunction.  There  can  be  no  doubt 
that  in  a  bill  fora  divorce  a  prayer  for  alimony  may  be  inserted, 
and  any  charges  made  in  it  respecting  property,  which  might 
affect  that  question,  would  be  proper. 
The  demurrer  sustained,  with  costs. 

[At  a  subsequent  day  in  term,  the  question  of  costs  being  agi- 
tated, the  chancellor,  under  the  peculiar  circumstances  of  tho 
case,  modified  the  opinion  and  disallowed  costs.] 


KOBEET  HAETSHOKNE,  surviving  Administrator  of  HENRY  P. 
SCHENCK,  deceased,  v.  JOHN  CUTTRELL. 

To  impeach  an  award  in  equity,  there  must  bo  corruption,  partiality,  a  gross 
misbehaviour  in  tho  urbitratora,  or  some,  palpable  mistake  made  by  them  in 
law  or  fact. 

A  mistake  in  the  law  must  be  a  plain  one,  and  upon  some  material  point  nffect- 
ing  the  case.  A  mistake  in  tae  fact  must  in  general  bo  mc!i  as  the  arbitra- 
tor himself  would  admit. 

An  error  in  judgment  on  the  merits,  committed  by  the  arbitrators,  or  a  mis- 
take in  the  admission  cr  rejection  of  evidence,  not  materially  affecting  tho 
decision,  is  no  ground  for  the  interposition  of  a  court  of  equity. 

If  the  arbitrators  receive  the  statement  of  one  of  the  parties  as  to  material 
facts,  without  proof,  when  objection  is  made  by  the  adverse  party,  it  is  an 
impropriety  so  grccs  as  to  call  for  the  aid  of  the  court. 

That  tho  arbitrators  after  hearing  the  evidence,  and  while  considering  their 
award,  called  both  the  parlies  be'ore  them,  and  asked  one  of  them  questions 
concerning  tho  case,  without  the  permission  or  co  :sont  of  the  other,  or  ob- 
jection made  by  him,  constitutes  no  valid  objection  to  the  award. 

BILL  filed  March  7th,  1839,  to  set  aside  and  award.     The  bill 
charges,  that  Henry  F.  Schenck,  the  complainant's  intestate,  in 
39 


203  CASES  IN  CHANCERY, 


Adm'r  of  Schenk  v.  Cuttrell. 


the  year  eighteen  hundred  and  thirty-six,  contracted  with  the'de 
f  endant,  who  was  a  ship-carpenter,  to  build  a  vessel  for  Sehenck, 
to  be  finished  by  the  first  of  March,  eighteen  hundred  and  thirty- 
seven.  That  the  contract  was  closed  by  a  letter  written  by 
Sehenck  to  the  defendant,  containing  directions  for  the  building 
of  the  vessel,  which  letter  remains  in  the  possession  of  Cuttrell, 
and  which  is  the  only  memorandum  in  writing  of  the  contract 
between  the  parties.  That  Sehenck  paid  nine  hundred  and  sixty 
dollars  upon  the  contract  to  the  defendant,  who  immediately  com- 
menced the  building  of  the  vessel.  That  Sehenck  died  on  the 
sixteenth  of  January,  eighteen  hundred  and  thirty-seven,  and 
that  the  administration  of  his  estate  was  thereupon  granted  to 
the  complainant  and  James  Hopping,  esquire,  who  hath  since 
departed  this  life.  That  immediately  after  the  granting  of  letters 
of  administration,  the  defendant  was  informed  by  Hopping,  ono 
of  the  administrators,  with  the  assent  of  the  complainant,  that 
the  administrators  could  not  complete  the  contract;  that  they  did 
not  wish  the  building  of  the  vessel  continued,  and  that  they 
would  claim  the  nine  hundred  and  sixty  dollars  paid  upon  the 
contract  by  Sehenck  in  his  life-time.  "Whereupon  the  defendant 
ceased  to  work  upon  the  vessel  under  the  contract,  on  account  of 
the  administrators,  and  in  the  month  of  March,  eighteen  hun- 
dred and  thirty-seven,  offered  to  firnishthe  vessel  and  sell  her  on 
his  own  account,  at  the  rate  of  forty-two  dollars  and  fifty  cents 
per  ton,  to  one  "William  Brown,  who  offered  to  take  the  vessel  at 
forty  dollars  per  ton,  the  price  for  which  she  was  to  be  built  un. 
der  the  contract  with  Sehenck.  That  the  defendant  failed  to 
complete  the  vessel  at  tho  time  stipulated  in  his  contract  with 
Sehenck,  and  never  tendered  her  to  the  administrators,  or  offered 
to  fulfil  his  contract,  but  on  the  contrary,  in  tho  summer  of 
eighteen  hundred  and  thirty-seven,  finished  and  sold  the  vessel 
on  his  own  account.  That  difficulties  having  arisen  between  the 
complainant  and  defendant  in  relation  to  the  matter,  the  com- 
plainant claiming  that  the  contract  had  been  rescinded,  and  that 
nine  hundred  and  sixty  dollars,  tho  whole  sum  advanced  on  tho 
contract,  should  be  refunded  ;  and  the  defendant  insisting  that 


APEIL  TERM,  1840.  299 

Adin'r  of  Schenck  v.  Cuttrell. 

he  had  sustained  a  loss  upon  the  vessel  of  about  two  hundred 
and  fifty  dollars,  which  he  should  be  allowed  to  retain  out  of  the 
money  in  his  hands — it  was  agreed  by  the  parties  to  submit  the 
matter  to  arbitration.  That  the  parties  having  entered  into  bond 
for  that  purpose,  submitted  the  matter  to  the  award  and  arbitra- 
ment of  John  Hopping,  Samuel  Sproul  and  Samuel  Mairs, 
whose  award,  or  the  award  of  any  two  of  them,  should  be  linal 
and  conclusive ;  and  thereupon  the  matter  was  heard  before  the 
said  arbitrators,  on  the  fifteenth  of  January,  eighteen  hundred 
and  thirty-nine.  That  on  the  hearing  before  the  arbitrators,  the 
defendant  admitted  the  receipt  of  tho  nine  hundred  and  sixty 
dollars  paid  him  by  Schenck,  and  also  notice  from  the  adminis- 
trators that  they  would  not  take  the  vessel,  but  claimed  seven 
hundred  dollars  damages,  for  his  loss  sustained  in  building  the 
vesseL  In  support  of  his  claim  he  offered  in  evidence  the  afore- 
said letter  from  Schenck  to  the  defendant  respecting  the  building 
of  the  vessel,  and  also  offered  to  prove  by  Henry  Cuttrell,  that 
Schenck  agreed  by  parol,  with  the  witness  and  the  defendant, 
while  they  were  partners,  to  build  him  a  vessel  at  forty  dollars 
per  ton,  without  finishing  the  cabin,  and  that  the  defendant  and 
witness  afterwards  dissolved  partnership  ;  to  which  evidence  the 
complainant,  by  his  counsel,  objected  as  incompetent  and  unlaw- 
ful, but  tho  objection  was  overruled  by  tho  abitrators  and  tho 
evidence  admitted.  That  no  evidence  was  offered  by  the  defen- 
dant before  the  arbitrators,  that  he  had  given  notice  to  the  ad- 
ministrators, or  either  of  them,  that  he  should  hold  them  liable 
upon  the  contract,  or  that  he  finished  the  vessel  for  them,  or  that 
he  finished  the  vessel  with  a  cabin,  or  that  he  had  sustained  any 
loss  whatever  on  said  vessel,  nor  did  he  offer  or  attempt  to  provo 
that  he  had  sold  the  vessel  at  any  price,  nor  what  it  would  c  ost  to 
finish  the  cabin,  but  that  the  arbitrators  received  the  bare  state- 
ments of  the  defendant,  of  the  facts  last  mentioned,  without  bo- 
ing  under  oath,  though  the  reception  of  the  defendant's  state- 
ments by  the  arbitrators  was  objected  to  by  the  complainant  as 
unlawful  and  improper.  That  the  arbitrators,  after  having 
heard  the  evidence  and  allegations  of  the  parties,  and  having  re- 


:oo  CASES  IK  CIIANCEEY, 


Adm'r  o?  Sctenck  v.  Cnttrell. 


tired  to  concider  of  tlieir  award,  and  after  the  counsel  of  tlio 
complainant  had  left  the  place  of  trial,  called  the  parties  before 
them,  and  examined  the  defendant  upon  the  matters  in  contro- 
versy, without  the  consent  or  permission  of  the  complainant. 
That  tr/o  of  the  arbitrators,  on  the  ninth  of  January,  eighteen 
hundred  and  thirty-nine,  made  their  award  upon  the  matter  in 
difference,  awarding  that  the  said  John  Cuttrell  should  pay  to 
the  complainant,  out  of  the  monies  in  his  hands,  two  hundred 
and  eighty  dollars,  thereby  allowing  to  him  six  hundred  and 
eighty  dollars  for  his  loss  sustained  upon  the  vessel.  The  bill 
further  charges,  that  the  defendant  deceived  him  in  regard  to  the 
amount  of  damages  claimed  by  him,  representing  that  he  claim- 
ed only  two  hundred  and  eighty  dollars,  when  in  fact  he  claimed 
seven  hundred  dollars ;  that  the  arbitrators  acted  unlawfully  in 
the  admission  of  illegal  testimony,  and  also  in  admitting  the 
statements  of  thedefendantsunsustainedbyproof;  that  they  acted 
with  gross  partiality  in  awarding  six  hundred  and  eighty  dollars 
to  the  defendant,  without  any  evidence  in  support  of  such  dam- 
ages ;  and  that  they  made  a  gross  mistake  in  point  of  law,  in 
awarding  any  thing  to  the  defendant  upon  the  evidence  in  the 
cose.  The  bill  prays  that  the  arbitration  bond  and  award  may 
be  declared  null  and  void,  and  may  be  ordered  to  be  delivered  up 
to  be  cancelled. 

To  this  bill  there  was  a  general  demurrer  for  want  of  equity. 

'Hartshorne,  for  complainant 
VrederiburgJi,  for  defendant. 

THE  CHANCELLOR.  This  is  a  bill  to  set  aside  an  award  of 
arbitrators  made  between  the  parties,  to  which  the  defendant  lias 
demurred  for  want  of  equity.  This  presents  the  question,  wheth- 
er the  case  stated  by  the  complainant,  if  true,  is  one  proper  for 
the  interference  of  the  court. 

The  grounds  for  interference  with  awards  in  this  court  has 
been  a  subject  often  discussed,  and  may  now  be  considered  as 


APRIL  TEKA1,  1840.  301 

Adm'r  of  Schcnck  v.  Cuttrell. 

well  settled.  To  impeach  an  award,  there  must  be  corruption, 
partiality,  or  gross  misbehaviour  in  the  arbitrators,  or  some  pal- 
pable mistake  made  by  them  in  the  law  or  fact.  Tittensojn,  v. 
Peat,  3  Atkyns,  529  ;  3  Aikyns,  CM ;  Herrick  v.  Blair  and 
Blair,  1  Johns.  Ch.  101 ;  Underbill  v.  Van  Courilandt,  2  Johns. 
Ch.  361 ;  Campbell  v.  Western,  3  Paige,  138. 

All  the  cases  agree  that  corruption  or  gross  misbehaviour  in 
the  arbitrators,  will  be  fatal  to  an  award,  and  the  later  cases  re- 
cognize the  principle  that  a  plain  mistake,  either  in  law  or  fact, 
vill  also  be  sufficient  to  destroy  it.  This  being  a  tribunal  of  the 
parties'  own  choosing,  of  a  domestic  character,  and  in  many 
cases  a  very  convenient  and  cheap  mode  of  settling  controversies, 
their  doings  are  construed  liberally.  A  mistake  in  the  law, 
therefore,  must  be  a  plain  one,  and  upon  some  material  point 
affecting  the  case,  and  the  mistake  in  fact  must  in  general  be 
such  as  the  arbitrator  himself  would  admit,  such  as  a  miscalcu- 
lation in  an  account,  and  the  like.  As  to  error  in  judgment  on 
the  merits,  it  is  no  ground  whatever  for  the  interposition  of  a 
court  of  equity.  This  would  put  an  end  to  all  arbitrations,  for 
it  would  at  once  declare  that  the  arbitrators  must  give  the  same 
decision  that  this  court  would  have  given  under  the  like  circum- 
stances. This  is  not  necessary.  So  too,  a  mistake  in  the  ad- 
mission or  rejection  of  evidence  not  materially  affecting  the  de- 
cision, although  not  strictly  according  to  law,  is  no  ground  for 
interference.  The  language  of  chancellor  Wai  worth  in  the  case 
last  cited,  in  speaking  of  the  impropriety  of  interfering  iu  such 
case,  is  very  correct.  He  says,  "  if  every  party  who  arbitrates 
in  relation  to  a  contested  claim  to  save  trouble  and  expense,  is  to 
be  subjected  to  a  chancery  suit  and  to  several  hundred  dollars 
costs,  if  the  arbitrators  happen  to  err  upon  a  doubtful  question  as 
to  the  admissibility  of  a  witness,  the  sooner  these  domestic  tribu- 
nals of  the  parties'  own  selection  are  abolished  the  better.  Such 
a  principle  is  wholly  inconsistent  with  common  sense,  and  cannot 
be  the  law  of  a  court  of  equity." 

If,  therefore,  upon  examining  thia  bill,  taking  the  case  as  there 
stated,  there  shall  be  made  out  against  the  arbitrators,  corruption, 


502  CASES  DT  C1IANCEHY, 


Adm'r  of  Schenck  v.  Cuttrell. 


partiality,  or  gross  misbehaviour,  or  a  palpable  mistake  in  law 
or  fact  on  a  material  point,  the  suit  must  be  sustained,  otherwise 
not.  I  will  not  look  at  all  at  the  question,  whether  the  ultimate 
judgment  which  the  arbitrators  came  to  was  right  or  wrong : 
that^he  parties  themselves  agreed,should  be  settled  by  other  men. 

To  have  enabled  me  the  better  to  come  at  the  case,  the  com- 
plainant should  have  set  out  the  arbitration  bond  and  the  award. 
By  t^iat  it  would  have  appeared  what  was  submitted.  I  take  it 
for  granted,  however,  that  it  embraced  in  form,  the  controversy 
between  the  parties  touching  the  nine  hundred  and  sixty  dollars 
which  the  complainant  claimed  to  have  refunded  by  the  defend- 
ant, as  monies  paid  him  by  the  intestate  on  a  contract  for  build- 
ing a  vessel;  and  on  the  other  hand,  the  deduction  from  that  sum 
by  way  of  damages,  which  the  defendant  claimed  on  his  part,  for 
his  loss  by  the  complainant's  not  fulfilling  the«ontract.  It  was, 
doubtless,  to  put  an  end  to  this  difficulty,  that  the  arbitration  was 
entered  into. 

The  charges  in  the  bill,  and  on  which  the  complainant  relies, 
must  be  examined  separately. 

The  first  charge  is,  that  the  complainant  was  deceived  before 
entering  into  the  bonds,by  a  conversation  he  had  with  the  defend- 
ant, in  which  he  stated  his  loss  on  the  vessel  to  have  been  about 
two  hundred  and  eighty  dollars,  which  was  all  that  he  claimed, 
when  the  award  has  made  him  a  much  larger  allowance.  The 
matters  submitted  were  defined  and  fixed  by  the  bond,and  there  is 
no  pretence  that  any  limit  to  the  defendant's  claim  was  there  made. 
It  would  indeed  seem  strange  that  a  party  should  recover  more 
than  ho  stated  his  claim  to  be,  and  yet  he  might  well  be  mis- 
taken in  a  matter  of  this  kind.  Be  that,  however,  as  it  may, 
the  mere  conversation  of  the  parties  prior  to  the  hearing  can  be 
no  ground  for  disturbing  an  award  made  in  so  solemn  form. 

The  second  charge  is,  that  the  arbitrators  admitted  illegal  evi- 
dence. They  admitted  Francis  Cuttrell  to  prove  that  Schenck, 
the  intestate,  agreed  by  parol  with  the  witness  and  the  defendant, 
while  they  were  partners,  to  build  him  a  vessel  at  forty  dollars  a 
ton  without  finishing  the  cabin,  and  that  the  witness  and  the  de« 


APRIL  TERM,  1840.  303 

Adm'r  of  Schenck  v.  Cuttrell. 

fcndant  afterwards  dissolved  partnership.  This  is  objected  to, 
because  it  "would  contradict  a  written  agreement  made  between 
Schenck  and  the  defendant,  for  building  the  vessel  referred  to  in 
this  cause.  This  agreement  is  not  set  out  in  the  bill,  and  it  is 
therefore  impossible  for  me  to  say  "what  foundation  there  is  for 
tliis  charge.  But  the  complainant  is  bound  to  state  in  his  bill  a 
palpable  mistake  in  the  decision  of  the  arbitrators.  It  is  very 
easy  to  conceive  how  this  evidence  might  have  been  proper.  If 
ii  D  prico  was  fixed  in  the  agreement,  this  would  be  a  very  proper 
mode  to  come  at  a  fair  valuation.  I  can  hardly  suppose  it  was 
ever  intended  that  evidence  like  this  should  control  a  written 
agreement  between  the  parties.  If  such  was  the  fact,  the  agree- 
ment should  have  been  set  out,  and  the  manner  in  which  tho 
proof  contradicted  the  agreement  specified.  The  bill  does  not 
even  affirm  that  this  evidence  did  in  fact  contradict  the  writing, 
but  merely  that  counsel  took  that  ground  before  the  arbitrators. 
The  third  charge  is,  that  the  statement  of  the  defendant  was 
received  as  to  material  facts,  without  proof,  and  when  objected  to 
by  the  complainant.  If  this  was  so,  there  can  be  no  doubt  it 
would  be  so  gross  an  impropriety  as  would  call  for  the  aid  of  the 
court.  But  when  I  look  at  the  facts  which  the  defendant  estab- 
lished in  this  way,  they  appear  to  be  no  way  material  to  the  de- 
cision of  the  cause.  "What  was  the  question  before  the  arbitra- 
tors ?  Mr.  Schenck,  the  complainant's  intestate,  a  short  time 
before  liis  death,  entered  into  an  agreement  with  tho  defendant 
to  build  him  a  vessel,  and  paid  him  on  account  nine  hundred 
and  sixty  dollars.  After  his  death,  the  complainant's  co-admin- 
istrator, with  his  approbation,  informed  the  defendant  that  the 
said  administrators  could  not  complete  the  contract  for  building 
the  said  vessel,  and  that  they  should  claim  of  him  the  nine  hun- 
dred and  sixty  dollars  which  Mr.  Schenck  had  paid.  The  charge 
in  the  bill  is,  "  that  the  defendant  did  not  offer  or  produce  any 
evidence  whatever  before  the  said  arbitrators,  that  ho  had  given 
any  notice  to  the  said  administrators,  or  either  of  them,  that  he 
should  hold  them  to  the  said  contract,  or  that  he  finished  the  said 
ressel  for  the  said  administrators,  or  for  your  orator  as  survivor,  at 


304:'  OASES  IK  CHANCERY, 


Aclm'r  of  Schenck  v.  Cuttrell. 


the  time  mentioned  in  the  said  contract,  or  at  any  other  time,  or 
that  he  finished  the  said  vessel  with  a  cabin,  or  that  lie  sustain- 
ed any  loss  whatever  on  said  vessel ;  nor  did  he  offer  or  attempt 
to  prove,  that  he  had  sold  the  said  vessel  at  any  price,  or  what 
it  would  cost  to  finish  the  cabin,  but  received  the  statement  of  the 
defendant  alone  on  these  facts."  After  the  administrators  had 
notified  him  that  they  would  not  fulfil  the  contract  on  their  part, 
the  defendant  was  not  bound  to  go  further.  He  might  stop  there; 
and  whether  he  ever  finished  the  vessel  or  not,  or  gave  them  any 
notice  or  not,  he  might  fairly,  as  it  appears  to  me,  remunerate  him- 
self out  of  the  money  already  paid,  for  his  trouble  and  expenses 
as  far  as  he  had  gone.  The  question  of  damages  is,  and  must 
be,  a  matter  resting  in  discretion,  to  be  judged  of,  not  from  any 
positive  proof  of  the  amount  of  the  loss,  but  from  the  general 
circumstances  attending  the  case.  This  charge  is  entirely  too 
general  and  uncertain  in  its  character  to  justify  the  interference 
of  the  court.  What  the  evidence  was  upon  which  the  arbitrators 
acted,  does  not  appear.  There  may  have  been  such  a  state  of 
facts  proved  as  to  enable  the  arbitrators  to  form  a  fair  judgment  as 
to  the  amount  of  remuneration  the  party  was  entitled  to. 

The  last  charge  is,  that  the  arbitrators,  after  hearing  the  evi- 
dence, and  while  considering  of  their  award,  called  the  parties 
before  them,  and  asked  the  defendant  questions  concerning  the 
case,  without  the  permission  or  consent  of  the  complainant.  It 
would  seem  that  they  called  both  the  parties  in,  and  that  too, 
without  any  objection  being  made  by  the  complainant.  In  these 
investigations  before  arbitrators,  often  conducted  by  men  unskill- 
ed in  the  forms  of  judicial  proceeding,  to  set  aside  an  award  be- 
cause the  arbitrators  asked  the  parties  questions,  without  objec- 
tion being  made  at  the  time,  and  when  both  were  present,  and 
that  too,  without  stating  what  those  questions  were,  would  be 
holding  too  strict  a  rule,  and  be  foreign  to  that  liberal  construc- 
tion which  should  ever  be  placed  on  the  conduct  of  a  tribunal 
chosen  by  the  parties  themselves. 

This  award  may  be  wrong  in  amount,  and  it  may,  for  aught 
that  appears  to  me,  be  all  right.  At  all  events  the  bill  does  not, 


APRIL  TERM,  1840.  305 

Adrn'r  of  Schenck  v.  Cuttrcll. 

in  my  view,  present  a  case  proper  to  call  on  the  defendcnt  to 
answer.     There  is  no  such  feature  presented  as  will  justify  me. 
in  sustaining  the  bill.     The  bill  must,  therefore,  be  dismissed, 
with  costs. 

Decree  accordingly. 
CITED  in  StalTa  Ad.  v.Price.l  Za5.37;  Veghte  r.  Hoagland.  2 


JOSEPH  M.  STILLWELL  v.  ROBERT 

Under  a  general  demurrer  for  want  of  equity,  a  demurrer  ore  Icnus  maybe 
made  for  want  of  p.irtie  . 

The  general  rule,  that  all  persons  who  have  an  interest  in  the  decree  must  be 
made  p  .rties,  has  i  ts  exceptions,  and  will  be  controlled  and  regulated  jn  the 
discretion  of  the  court. 

A  mere  nominal  trustee  cannot  bring  a  nuit  in  his  own  name,  without  joining 
his  cestui  que  trust  with  him. 

BILL  for  relief  and  for  an  in  junction  to  restrain  proceedings  at 
law,  filed  September  27th,  1838.  General  demurrer  to  the  bill 
for  want  of  equity.  The  nature  of  the  bill,  and  the  grounds 
relied  upon  in  support  of  the  demurrer,  sufficiently  appear  in  the 
opinion  of  the  chancellor. 

J.  C.  Potts,  for  defendant,  in  support  of  the  demurrer,  cited 
GJ.C.fc  143 ;  1  J.  C.  It.  543 ;  13  Vetey,  251 ;  Wigram, 
on  Discovery,  19,  21,  90 ;  Ibid,  147.  note  (e.) ;  2  Vesey,  679,, 
459;  2*7:  £#.73,47. 

J.  Wilson,  for  complainant,  contra. 

THE  CHANCELLOR.  The  complainant  and  two  other  gen- 
tlemen, were  appointed  commissioners  by  the  orphan's  court  of 
the  county  of  Burlington,  to  divide  the  real  estate  of  Asa  Rogers, 
deceased,  among  his  children  and  heirs  at  law.  Not  b^ingublo 
to  divide  the  estate,  they  sold  it,  and  on  such  sale  received  a  con- 
40 


300  CASES  IK  CHANCERY,       . 

Stiilwell  v.  M'Neely. 

piderable  snm  of  money,  which  they  deposited  for  safe-keeping 
iu  the  State  Bank  at  Trenton.  Shortly  after  such  deposit  was 
made  the  bank  failed,  and  the  commissioners  prosecuted  an  ac- 
tion at  law  against  the  bank,  and  obtained  judgment  for  the 
amount  due  them.  Executions  issued  upon  this  judgment,  and 
certain  lands  said  to  be  the  property  of  the  bank,  lying  part  in 
the  (now)  county  of  Mercer,  and  part  in  the  county  of  Mon- 
motith,  were  sold,  and  purchased  by  the  complainant.  The 
complainant  says  that  he  purchased,  under  the  advice  of  the 
counsel  of  the  commissioners,  for  and  in  behalf  of  the  heirs  of 
Asa  Rogers,  and  received  a  deed  in  his  own  name,  but  really  in 
trust  of  said  heirs,  and  that  the  said  heirs  have  since  approved 
his  course,  and  requested  him  to  proceed  and  sell  the  lands  for 
their  account  The  lands  so  bought  by  the  complainant  lying  in 
the  county  of  Mercer  are  stated  to  be  in  the  possession  of  the  de- 
fendant, and  those  in  Monmouth  in  the  possession  of  the  com- 
plainant. For  those  in  Mercer  the  complainant  has  brought 
e  jectinents,  and  for  those  in  Monmouth  the  defendant  has  brought 
an  ejectment.  The  object  of  these  suits  is  to  try  the  complain- 
ant's title  to  the  lands  purchased  by  him,  as  above  stated,  at  sher- 
iffs sale.  The  bill  charges  that  the  defendant  was  a  director  of 
the  bank,  and  without  consideration  therefor,  obtained  a  deed 
from  the  bank  for  the  said  lands  which  is  fraudulent  and  void, 
and  now  claims  under  the  same  as  a  valid  conveyance  to  him. 
The  object  of  the  bill  is  to  obtain  a  discovery  of  the  true  character 
of  the  defendant's  deed  in  aid  of  the  complainant's  suits  at  law, 
and  for  relief  in  this  court,  by  a  decree  declaring  the  deed  from 
the  bank  to  the  defendant  null  and  void.  To  this  bill  the  de- 
fendant has  filed  a  general  demurrer  for  want  of  equity,  which 
is  now  to  be  disposed  of. 

In  the  first  place,  it  is  insisted  in  support  of  this  demurrer, 
that  the  proper  parties  are  not  before  the  court.  This  is  met  by 
the  complainant's  counsel  by  an  objection,  that  on  this  demurrer 
the  party  is  not  at  liberty  to  raise  any  question  as  to  parties.  But 
the  rule  is  clearly  otherwise.  Under  a  general  demurrer  for  want 
of  equity,  a  demurrer  ore  tenus  may  bo  made  for  want  of  par- 


APRIL  TERM,  1840.  307 


Stillwoll  v.  M'Neelv. 


ties.     2  Hoffman's  Oh.  Prac.  218 ;  6  Johns.  Oh.  Rep.  143.     It 
is  urged,  that  the  heirs  of  Asa  Rogers,  as  cestui  quo  trusts,  are 
necessary  parties  with  the  present  complainant ;  and  under  the 
frame  of  the  bill  I  incline  to  that  opinion.     The  complainant 
states  himself  to  be  a  mere  trustee  for  these  heirs,  and  is  particu- 
lar to  declare  all  that  he  does  to  be  in  that  character,  and  for  the 
purpose  of  obtaining  the  means  to  remunerate  them  for  their 
losses ;  and  he  further  states,  that  his  course  in  purchasing  the 
lands  for  their  account  has  been  appYoved  of  by  them.     Who  are 
proper  parties  to  a  bill,  is  often  a  nice  question ;  and  while  the 
rule,  as  a  general  one,  requires  that  all  persons  must  be  made, 
parties  who  Lave  an  interest  in  the  decree  which  may  be  made 
yet  even  this  has  its  exceptions,  and  will  be  controlled  and  regu- 
lated in  the  discretion  of  the  court.     There  are  cases  where  the 
inconvenience  would  be  so  great  to  bring  a  large  number  of  de- 
fendants before  the  court,  that  it  has  been  dispensed  with  from 
the  necessity  of  the  case.      In  the  case  of  Van  Vechten  and  S0- 
bring  v.  Terry  and  others,  2  John.  Ch.  197,  it  was  held,  on 
the  foreclosure  of  a  mortgage  made  by  a  man  as  trustee  for  two 
hundred  and  fifty  persons,  that  the  trustee  aloue  was  sufficient  to 
be  made  defendant.      It  was  placed  on  the  ground  of  the  great 
expenses  it  would  call  for,  and  the  conviction  that  the  trustee 
would  alone,  for  the  purpose  of  that  suit,  sufficiently  represent 
oil  the  parties  in  interest     But  these  extraordinary  cases  cannot 
and  do  not  affect  the  general  rule,  and  accordingly  we  find  the 
same  chancellor  who  decided  the  case  just  referred  to,  in  Malln 
v.  Malm,  2  John*  Ch.  233,  states  the  rule  to  bs,  that  a  mere 
nominal  trustee  cannot  bring  a  suit  in  his  own  name  without 
joining  his  ceetui  quo  trust  with  hint.     There  is  a  sound  reason 
for  this  rule.  The  persons  interested  should  come  before  the  court 
and  be  heard  on  their  own  account,  and  the  defendant  should  by 
the  decree  in  the  cause  be  protected  against  all  claim  on  their 
part     A  question  might,  perhaps,  be  made  in  this  case,  whether 
in  fact,  under  the  circumstances,  the  complainant  could  be  con- 
sidered as  the  mere  trustee  for  others  in  the  purchase  of  these 
lands.    Yet  he  states  the  fact  to  be  so,  and  that  the  cestui  que 


308  CASES  IN  CHASTCEKY, 

Stiihvell  v.  M  Neely. 

truths  have  recognized  the  purchase  as  made  on  their  account, 
and  such  on  this  demurrer  must  be  taken  as  the  truth  of  the  case. ; 
and  being  so,  the  complainant  was  bound  to  join  with  him  those 
for  whom  he  professes  to  be  only  such  nominal  trustee.  This  be- 
ing matter  of  form  only,  may  be  amended  on  proper  application, 
and  it  will  therefore  be  for  the  interest  of  all  concerned  to  consid- 
er the  remaining  part  of  the  case. 

The  second  exception  in  support  of  the  demurrer,  goes  to  the 
whole  merits  of  the  bill,  and  I  cannot  think  it  is  well  taken. 
This  is  a  bill  asking  relief  against  a  deed  which  the  defendant 
lias  for  lands  purchased  by  the  complainant  at  a  sheriffs  sale, 
and  for  which  he  has  title,  on  the  ground  of  fraud.  The  com- 
plainant stands  in  a  position  entitling  him  to  call  in  question  the 
validity  of  this  deed.  He  is  the  person  interested ;  and  if  his  al- 
legation be  true,  and  the  defendant^  deed  void,  should  have  the 
aid  of  this  court.  It  is  removing  out  of  his  way  the  only  imped- 
iment to  a  good  title  to  the  lands  in  question,  and  by  the  exercise 
of  the  common  jurisdiction  of  the  court.  It  is  not,  as  it  would 
eeem  from  the  defendant's  argument  to  have  been  viewed,  as  a 
mere  bill  for  discovery  in  aid  of  a  suit  at  law,  but  a  case  where 
the  discovery  is  necessary  for  the-  relief  asked  in  this  suit. 

In  the  case  to  which)  I  am  referred  from  1  Johns.  CJi.  543,  the 
chancellor  was  of  opinion,  that  the-  complainant  could  have  no 
relief  in  the  court  of  chancery,  even  if  his  case  as  stated  was 
fully  made  out  ;the  discovery,  therefore,  was  not  wanted  f  or  that 
purpose,  but  only  in  aid  of  a  suit  at  law,  and  as  no-  reason  was 
assigned  why  tho  proof  could  not  as  well  be  had  in  the  suit  at 
law,  especially  as  it  went  only  in  mitigation  of  damages,,  he  re- 
fused to-  interfere.  The  case  in  13  Yesey,  251,  to  which  I  am 
also  referred,  is  founded  on  a  decision  in  4  Vesey,  70.  There 
the  complainant's  object  was  to  get  at  tho  train  of  the  defendant's 
title,  and  for  the  production  of  hia  papers.  The  courts  &ay,  while 
they  would  remove  any  impediment  ID  tho  way  of  tho  complain- 
ant, they  will  not  lend  their  aid  for  the  mere  purpose  of  obliging 
a  party  to  show  in  advance  the  foundation  of  the  title  on  which 
lie  means  to  rest  his-  defence  at  law. 


APRIL  TERM,  1840.  30i> 

Stillwell  v.  M'Noely. 

In  the  case  before  me,  the  title  on  which  the  defendant  rests  la 
well  known,  and  no  discovery  is  wanted  for  that  purpose ;  but  the 
object  of  the  complainant  is  to  set  aside  as  fraudulent  a  deed  on 
which  he  claims  title.  Nor  do  I  see  the  application  of  the  cases, 
that  a  bona  fide  purchaser  without  notice  will  be  protected  f  rora 
answering  in  reference  to  his  title.  The  complainant  purchased, 
probably,  with  knowledge  of  the  defendant's  title,  and  took  hia 
deed  with  the  intention  of  questioning  the  defendant's  deed,  and 
thereby  saving  his  debt.  This  lie  had  a  right  to  do. 

As  to  making  the  bank  a  party,  as  urged  by  the  defendant,  I 
see  no  propriety  in  so  doing.  In  this  suit  there  is  no  controversy 
with  the  bank.  If  the  deed  given  to  the  defendant  is  not  valid, 
it  must  be  so  declared,  but  no  decree  can  be  had  against  the 
bank. 

Upon  the  merits,  therefore,  there  is  no  reason  why  the  defend- 
ant should  not  answer ;  but  on  the  first  exception,  as  to  parties, 
the  demurrer  must  be  sustained,  with  costs. 

Demurrer  sustained,  with  costs. 

CITED  in  Willinlcv.  Mer.*Loan&  Itlcg.  Co-,  3  Or.  Cft.897;  Allen'i  Bn. 
v.  Roll.  10  C.  E.  Gr.  165. 


JOSEPH  E.  WEST  v.  ISAAC  SMITH,  Sheriff  of  Atlantic. 

Whore  the  complainant  omits  to  have  the  subpoena  served  and  returned  at  the 
term  to  which  it  is  in  ule  returnable,  the  injunction  ..'ill  be  dissolved. 

It  is  not  essential  that  a  subpoena  bo  served  by  the  sheriff  or  coroner.  It  may 
be  Kerved  by  a  private  person,  but  in  such  case  an  affidavit  most  b  •  made  of 
the  manner  and  time  of  service,  and  upon  the  return  of  the  -writ  a  rale  mast 
I  e  taken  on  the  defendant  to  plead,  answer  or  demur,  at  or  before  the  next 
stated  term  of  the  court, 

A  BILL  was  filed  in  this  cause  for  an  injunction  to  restrain 
the  defendant,  as  sheriff  of  the  county  of  Atlantic,  from  selling 
certain  real  estate  of  the  defendant  under  or  by  virtue  of  execu- 
tions at  law  in  the  sheriff's  hands.  The  bill  was  filed  on  the 
9th  day  of  November,  1839,  and  an  injunction  pursuant  to  the 


310  CASES  IN  CHANCERY, 


West  v.  Sxith. 


prayer  of  the  bill  allowed  and  served.  At  the  same  time  a  sub- 
poena was  issued,  returnable  to  January  term,  1840,  which  was 
never  served.  Prior  to  the  April  term,  and  before  notice  was 
given  of  the  present  motion,  a  new  subpoena  issued,  returnable 
to  April  term,  1840,  which  was  returned  served. 

Wilson,  for  defendant,  now  moved  to  dissolve  the  injunction, 
for  the  neglect  of  the  complainant  in  proceeding  with  his  suit. 


)  for  complainant,  contra,  stated  that  on  filing  the 
bill  a  subpoena  was  issued  and  delivered  to  the  complainant  to  be 
served,  but  that  the  writ  was  against  the  sheriff,  and  there  were 
no  coroners  in  the  county,  so  that  the  subpoena  could  not  be 
flerved. 

THE  CHANCELLOR.  The  injunction  must  be  dissolved.  The 
complainant  has  not  proceeded  with  his  suit  as  he  ought  to  have 
done.  A  subpoena  in  chancery  need  not  necessarily  be  served  by 
a  sheriff  or  a  coroner.  It  may  be  served  by  any  other  competent 
person  ;  but  in  such  case  there  must  be  an  affidavit  of  the  man- 
ner and  time  of  service,  and  upon  the  return  of  the  writ  a  rule 
must  be  taken  upon  the  defendant  to  plead,  answer  or  demur  at 
or  before  the  next  stated  term  of  the  court.  It  is  certainly  proper, 
in  all  ordinary  cases,  that  the  process  of  the  court  should  be  serv- 
ed by  the  sheriff  or  other  officer  known  to  the  law,  but  the  court 
has  repeatedly  sanctioned  the  service  of  its  process  by  a  private 
person. 

*  Injunction  dissolved,  with  costs. 

•  See  cose  of  Corey  v.  Voorhies  et  ai  ante,  page  5. 

CITED  in  Lee  v.    Cargill,  2  Stock.  832  ;  Brown  v.  Fuller,  2  Beaf,  274; 
SchcOe  V.  Schmidt,  ]  a/cCar.81-271. 


APRIL  TERM,  1840.  311 


DANIEL  "VV.  GOXJS  v.  GEOBGE  AV.  HALSTED  and  others. 

On  on  application,  by  petition,  verified  by  the  affidavit  of  the  party,  to  sol 
asu'c  a  sale,  tho  material  f.scts  alleged  ia  tho  petition  must  bo  proven.  Tho 
affidavit  of  tlio  I  iirty,  cxcei>tcstDfact8  peculiarly  within  his  own  knowledge, 
most  bo  supported  by  other  evidence. 

It  fa  noi  necessary  tV>.at  nclvcrticcmcnts  of  tho  BR!O  of  real  cstato  by  a  sheriff 
cr  ci  master  in,  chancery,  should  bo  signed  by  llu  officer  with  his  own  proper 
signature.  Whether  tho  officer's  na'iio  is  signed  to  tho  advertisement  by 
Liinsetf,  cr  printed,  or  signed  by  another  is  immaterial.  In  cither  case  it 
LJ  a  virtual  signing  by  tho  officer. 

Whore  a  sale  by  a  sheriff  or  master  is  adjourned,  no  publication  of  the  adjourn- 
ment  is  necessary. 

\Yhcro  a  sale  is  advertised  for  n  specified  dny  Idweeu  the  Aour»  of  twzloe  and 
fi'-.c  o'clock  in  the  afternoon,  and  the  property  is  sold  iu  pursuance  of  such 
advertisement,  tho  ecle  will  not  bo  eet  asice  although  (hero  is  a  propriety 
and  convenience  in  ^specifying  a  particular  hour  between  twelve  and  fira 
o'clock  for  the  sale. 

Nor  will  a  sale  by  an  officer  be  set  aside  because  the  terms  of  sale  nre  unusual- 
ly btrict  or  severe,  if  tho  circumstances  of  tho  case  call  for  rigid  measures. 
and  no  design  is  manifested  to  oppress  or  injure  tho  defendants. 

Where  a  tract  of  land  is  divided  into  distinct  parcels,  it  must  bo  sold  in  that 
way. 

ON  the  llth  of  April,  1840,  the  defendants  filed  their  petition 
for  relief  against  a  sale  made  by  a  master  in  chancery,  by  virtue 
of  an  execution  issued  out  of  this  court,  upon  a  decree  for  tho 
foreclosure  of  a  mortgage  and  sale  of  tho  mortgaged  premises. 
All  the  defendants  in  tho  original  cause,  consisting  of  tho  mort- 
gagor, and  of  subsequent  incumbrancers  and  purchasers  of  parts 
of  the  premises,  joined  in  the  petition,  which  was  verified  by  tho 
affidavit  of  one  of  the  petitioners.  On  filing  the  petition  an  order 
of  the  court  was  made  requiring  the  complainant  to  show  cause 
on  the  25th  of  April,  instant,  before  tho  chancellor  at  Newark, 
why  the  said  sale  should  not  be  set  aside  and  a  new  sale  ordered, 
and  that  in  the  mean  time  the  master  should  desist  from  exe- 
cuting a  deed  to  any  of  the  purchasers  at  said  sale.  Affidavits 
\vere  taken  on  the  part  of  the  complainant  upon  notice,  to  bo 


312  CASES  IK  CHANCERY, 


Coxe  v.  Hoisted  ct  al. 


used  on  tlie  argument.  No  affidavits  were  taken  on  the  part  01 
the  defendants.  Upon  the  coming  on  of  the  hearing,  the  counsel 
of  the  defendants  read  the  petition,  without  offering  any  evi- 
dence aliunde  of  the  matters  therein  alleged. 

H.  W.  Green,  for  complainant,  declined  offering  any  evidence, 
and  insisted  that  the  facts  alleged  in  the  petition  were  unsupport- 
ed by  evidence,  and  that  the  application  of  the -defendants  must 
bo  denied. 

W.  Hoisted  and  L  H.  Williamson,  for  defendants,  contra, 
insisted  that  it  was  not  necessary  to  offer  further  proof  in  sup- 
port of  the  application  ;  that  the  petition  verified  by  affidavit 
was  prima  facie  evidence  of  all  the  facts  contained  in  it,  and 
would  be  taken  as  true  until  overcome  by  proof  on  the  part  of 
the  complainant. 

BY  THE  CHANCELLOR.  The  defendants  seeic  relief  agaimt 
a  sale  made  under  the  process  of  the  court,  upon  the  ground  that 
the  sale  was  irregular  and  illegal.  The  allegation  must  bo  sus- 
tained by  evidence.  The  petition,  verified  by  the  affidavit  of  tho 
party,  is  a  foundation  for  the  rule  to  show  cause,  and  will  of 
course  be  read  upon  the  argument  of  the  rule  ;  but  it  is  not  com- 
petent evidence,  unsupported  by  other  proof,  of  the  charges 
therein  contained,  except  as  to  matters  peculiarly  and  exclusive- 
ly within  the  defendant's  own  knowledge.  The  petitioners  are 
the  actors  upon  this  motion.  They  are  bound  to  make  out  their 
case  as  stated,  and  cannot  call  upon  the  complainant  to  support 
the  sale,  until  they  have  offered  some  evidence  to  i:npeach  it. 
Upon  the  case  as  it  now  stands,  I  cannot  grant  the  motion.  As 
the  defendants'  solicitor  has  acted  under  a  different  impression 
as  to  the  rule  of  practice,  I  am  willing  to  grant  time,  if  desired, 
for  the  defendants  to  take  affidavits  in  support  of  the  motion. 

Upon  the  application  of  the  defendants'  counsel  the  hearing 
was  thereupon  postponed  until  the  seventh  of  May,  with  leave 


APHIL  TEEM,  1840.  313 


Coxe  v.    Halsttd  et  nl. 


to  botli  parties  to  take  affidavits  to  be  used  upon  the  hearing. 
On  the  seventh  of  May,  1840,  the  cause  came  on  for  hearing, 
upon  affidavits  taken  by  both  parties. 

It  appeared  by  the  petition  and  affidavits,  that  the  mortgaged 
premises  consisted  originally  of  a  farm  of  about  one  hundred  and 
thirty-eight  acres,  situate  in  the  township  of  Nottingham.  That 
V.  II.,  one  of  the  petitioners,  was  made  a  defendant  in  the  bill 
to  foreclose,  because  he  held  a  subsequent  mortgage  for  one  thou- 
sand dollars  upon  a  part  of  the  premises,  consisting  of  about 
twenty-three  acres.  That  previous  to  the  filing  of  the  bill  of  com- 
plaint, a  company  was  formed  for  the  purpose  of  improving  the 
mortgaged  premises,  and  incorporated  by  the  legislature  of  New- 
Jersey,  under  the  name  of  the  Nottingham  manufacturing  com- 
pany, who  had  purchased  the  mortgaged  premises  for  sixty  thou- 
sand dollars,  payable  in  the  stock  of  the  company.  That  tire 
said  company  had  excavated  and  constructed,  upon  the  twenty- 
three  aero  lot  mortgaged  to  the  said  "W.  II.,  a  basin  two  hundred 
and  thirty  feet  long  by  one  hundred  and  thirty  feet  wide,  and 
made  other  expensive  and  valuable  improvements  on  said  lot. 
That  the  said  company  had  agreed  to  sell  a  lot  fifty  feet  front  by 
one  hundred  feet  deep,  apart  of  the  said  twenty-three  acre  lot,  to 
J.  "W.  for  six  hundred  dollars,  who  had  taken  possession  of  said 
lot  and  built  a  lime-kiln  thereon.  That  the  said  company  had 
also  agreed  to  sell  a  lot  seventy-five  feet  front  by  one  hundred 
feet  deep,  another  part  of  the  said  twenty-three  acre  lot,  to 
W.  II.,  who  had  possession  of  said  lot,  and  constructed  a  dry  dock 
and  erected  a  store-house  and  hay  scales  thereon  at  great  ex- 
pense. That  all  the  said  improvements  were  made  with  the 
knowledge  of  the  complainant,  and  without  having  been  forbid- 
den by  him.  Twenty  days  previous  to  the  sale  a  notice  was 
served  upon  the  master,  requesting  him  to  sell  the  mortgaged 
premises  in  nine  different  lots,  five  of  which  were  parcels  of  the 
twenty-three  acre  lot.  The  premises  were  sold  in  the  manner 
requested  by  the  defendants,  excepting  the  twenty-three  acre  lot, 
which  was  all  sold  in  one  parcel.  The  premises  were  eold  without 
Abjection  on  the  part  of  the  defendants,exceptingthc  twenty-three 


814  CASES  m  CHANCERY, 


Coxo  v.   Halsted  et  al. 


acre  lot,  and  wlien  that  was  offered  the  defendants  forbid  the 
sale.  The  whole  of  the  twenty-three  acre  lot,  with  the  improve- 
ments, was  sold  to  the  complainant  for  five  thousand  dollars,  he 
being  the  only  bidder.  By  the  terms  of  the  sale,  each  purchaser 
was  required,  within  half  an  hour  after  the  premises  were  struck 
off  to  him,  to  pay  one-fourth  of  the  purchase  money  in  cash,  or 
by  a  check  on  one  of  the  Trenton  banks  marked  good,  and  the 
residue,  together  with  the  cost  of  writing  the  deed,  on  the  13th 
of  April  then  next,  when  the  deed  would  be  delivered.  Each 
purchaser  was  also  required  by  the  conditions  to  bind  himself  in 
writing,  at  the  time  of  making  the  first  payment,  to  forfeit  the 
same,  if  he  failed  in  all  things  to  comply  with  the  conditions  of 
sale.  It  appeared  by  the  evidence,  that  part  of  the  twenty-three 
acre  lot  had  been  enclosed  in  separate  parcels,  and  was  occupied 
by  different  tenants  as  farm  land ;  that  roads  had  been  opened 
and  improvements  made  on  other  parts  of  it,  wliich  however  lay 
in  common  unfenced,  and  the  bounds  of  the  different  lots  which 
had  been  sold  not  defined  by  any  visible  bounds.  The  witnesses 
on  the  part  of  the  defendants  testified  that  the  property  was  sac- 
rificed at  the  sale,  in  consequence  of  the  terms  of  the  sale  being 
•unusually  severe,  and  of  the  twenty-three  acre  lot  having  been 
sold  in  mass  ;  and  that  if  the  terms  of  sale  had  been  usual,  or 
if  the  twenty-three  acre  lot  had  been  sold  in  parcels,  as  request- 
ed, it  would  have  brought  more  than  enough  to  have  paid  the 
whole  mortgage  debt.  Witnesses  on  the  part  of  the  complainant 
testified  that  the  property  sold  for  its  fair  value.  The  reasons 
stated  in  the  petition,  and  relied  upon,  on  the  argument,  the  set- 
ting aside  the  sale,  appear  in  the  opinion  of  the  chancellor. 


W.  Hoisted  and  /.  II.  Williamson,  for  defendants,  in  sup- 
port of  the  motion,  cited  Elmer's  Digest,  487,  pi.  0  ;  lUd  401, 
pl.  26  ;  Ilid4&§,pl.  11 ;  Ryerson  v.  Nicholson,  2  Yeatcs,  517  ; 
Mohawk  Dank  v.  Atwatcr,  2  Paige,  C4;  Woods  v.  Monell, 
1  J.  C.  II.  502 ;  Rowley  v.  Browne,  1  Binney,  Cl ;  Jackson 
v.  Roosevelt,  13  John  R.  102 ;  JacJcson  v.  Newton,  18  Join., 


APRIL  TERM,  1840.  313 

Coxe  v.  Halsted  ct  nl. 

7?.  355;  7  GUI  and  J.  494-512;  Merwin  et  at.  v.  Smith  et 
al.,  ante,  196. 

H.  W.  Green,  contra. 

THE  CHANCELLOB.  All  the  defendants  who  have  any  direct 
interest  in  the  question,  have  united  in  a  petition  that  the  sale 
made  by  the  master  in  this  case  may  be  set  aside.  The  salo 
was  made  under  a  fi.  fa.  issued  on  the  9th  of  August,  1839, 
returnable  to  the  term  of  October  thereafter.  The  amount  to  b3 
raised  by  the  execution  was  large,  being  about  sixteen  thousand 
dollars,  and  the  property  to  be  sold  consisted  of  distinct  parcels. 
The  master  has  made  two  sales  on  this  execution,  the  first  on 
the  26th  of  November  last,  and  the  second  on  the  30th  and  31st 
of  March  last.  At  the  first  sale  the  greater  part  of  the  property 
was  purchased  by  the  defendants,  who  failed  to  comply  with  tho 
terms  of  the  sale,  and  a  resale  was  therefore  rendered  necessary. 
It  is  the  second  sale  which  is  now  attempted  to  be  set  aside  ;  and 
that  I  may  be  the  better  understood,  I  shall  consider  the  several 
reasons  assigned  in  the  order  in  which  they  were  presented. 

1.  That  the  advertisements  of  the  time  and  place  of  sale 
were  not  signed  by  tho  master  with  his  own  proper  hand.  They 
were  printed  notices,  containing  a  description  of  the  property, 
and  the  name  of  the  master  was  printed  at  tho  bottom  instead  of 
being  written  by  himself.  At  this  day  to  sustain  an  objection  of 
this  kind  would  be  too  strict  a  construction  of  tho  act,  and  create 
much  confusion  in  the  judicial  sales  of  the  state.  The  practice 
has  been  different  in  different  counties,  but  it  is  quite  probablo 
that  as  many  advertisements  are  put  up  with  the  name  of  tho 
officer  either  printed  or  signed  by  another  in  his  behalf,  as  thero 
are  of  those  actually  signed  by  himself.  The  advertisements 
must  be  signed  by  the  master  or  sheriff,  so  that  tho  public  may 
understand  that  they  are  made  by  due  authority,  but  whether 
tho  handwriting  of  the  officer  is  placed  to  tho  paper,  or  tho  sams 
be  done  by  his  authority  and  direction,  cither  by  printinj  or  by 
tho  handwriting  of  another,  is  not  material.  In  cither  case  it  is 


316  CASES  IN  CHANCERY, 


Ccso  v.   Halstetl   ct  al. 


virtually  a  signing  by  the  officer.  If  disposed  to  look  critically  r.t 
the  words  of  the  statute,  it  would  be  found  that  the  section  of  tho 
act  directing  a  sale,  by  a  master  or  sheriff,  of  mortgaged  premises, 
on  executions  out  of  this  court,  does  not  use  the  same  language 
with  that  which  directs  the  course  of  proceeding  on  executions 
from  the  supreme  court.  That  act  provides,  that  the  sheriff  shall 
give  notice  by  advertisements  "  signed  by  himself."  The  act 
regulating  sales  oa  mortgaged  premises,  uses  this  language  : — 
"  The  sheriff,  &c.,  shall  give  notice  by  advertisements  of  the  time 
and  place  of  sale,  and  proceed  in  all  other  respects  in  the  same 
manner  as  in  case  of  a  writ  of  fieri  facias  issued  out  of  the  su- 
preme court  against  real  estate."  The  words  "  signed  by  him- 
self," arc  omitted,  and  certainly  leave  the  act  on  this  point  of  very 
doubtful  construction. 

2.  The  master  adjourned  the  sale  from  the  2d  to  the  80th  of 
March,  without  publishing  such  adjournment  in  the  newspaper. 
Ilowever  expedient  a  requirement  of  this  kind  would  be,  it  is  a 
sufficient  answer,  that  the  law  makes  no  provision  on  tho  sub- 
ject.   The  publication  required  by  the  act  only  refers  to  the  time 
and  place  first  appointed  for  the  sale,  and  not  to  the  adjourned 
day.  That  such  is  its  meaning  is  obvious  from  the  publication  be- 
ing required  for  four  weeks  successively  prior  to  the  time  of  sale, 
and  yet  an  adjournment  may  be  made  by  the  officer  for  a  week 
or  ten  days,  or  for  any  other  time  not  exceeding  one  month. 
The  master,  however,  it  seems,  did  direct  advertisements  of  tho 
adjournment  to  bo  put  up  in  three  public  places  in  the  vicinity  of 
the  land.     This  was  not  required  by  law,  but  it  evinced  a  com- 
mendable disposition  to  give  publicity  to  the  sale. 

3.  The  master  advertised  the  sale  for  Monday,  tho  2d  of  March, 
between  the  hours  of  twelve  and  five  o'clock  in  the  af  ternoon,and 
not  for  a  precise  time  within  those  hours.     I  would  advise  every 
officer  to  name  an  hour  between  twelve  and  five  at  which  tho  sale 
will  commence.     There  is  a  propriety  and  convenience  to  tho 
parties  and  the  public  in  such  a  course,  which  should  always  bo 
considered,  but  I  do  not  think  it  essential  to  tho  validity  of  tho 
Bales.     Advertisements  for  sales  are  generally  made  between  the 


APRIL  TERM,  1840.  317 


Coie  v.  II  aisled  efr  al. 


hours  of  twelve  and  five,  without  naming  any  particular  hour, 
and  in  the  absence  of  any  proof  of  fraud  or  unfair  practice,  the 
sale  is  good. 

4.  That  the  public  places  at  which  tho  advertisements  were 
put  up  were  not  sufficiently  scattered,  but  were  too  near  each  oth- 
er.    The  land  to  be  sold  was  in  Nottingham  township.  Two  of 
tho  notices  were  put  up  in  Nottingham,  and  threo  in  the  town- 
ship of  Trenton.     The  places  appear  to  havo  boon  well  selected 
to  give  publicity  to  the  sale,  were  in  compliance  with  the  law, 
and  there  is  no  foundation  for  complaint  on  this  point. 

5.  The  terms  of  sale  are  complained  of  as  being  unusual,  se- 
vere, and  destructive  to  the  defendants'  rights.     This  is  an  im- 
portant inquiry,  and  should  be  well  considered.  These  conditions 
were,  that  the  purchaser  should  within  half  an  hour  pay  one- 
fourth  of  the  purchase-money  in  cash,  or  by  a  check  marked  good 
by  one  of  the  Trenton  banks ;  the  residue  of  the  money  to  be 
paid  at  the  delivery  of  the  deed  on  the  13th  of  April  then  next. 
In  case  of  non-compliance  with  the  conditions,  the  purchaser  to 
forfeit  tho  first  payment  and  to  make  good  all  damages  on  a  re- 
sale. These  are  certainly  strict  terms,  but  was  there  nothing  in 
the  case  calling  for  rigid  measures  ?     There  had  been  a  previous 
sale  made  on  this  execution.  The  greater  part  of  the  purchasers 
were  the  defendants  themselves,  none  of  whom  had  complied 
with  the  terms  of  the  sale,  or  offer  any  excuse  for  not  doing 
go.     The  terms  of  that  sale  required  no  payment  to  be  made  at 
the  time  of  sale,  but  at  the  giving  of  the  deed,  some  fifteen  days 
thereafter.  The  defendants,  who  were  the  purchasers,  thus  failing 
to  take  their  deeds  or  pay  any  money  at  the  time  fixed  for  that 
purpose,  the  whole  proceeding  was  of  no  avail,  and  the  com- 
plainant was  obliged  to  go  over  the  same  process  of  advertising 
for  t\vo  months  again,  and  be  thus  further  postponed  in  the  pay- 
ment of  his  debt.      When  the  master  came  to  fix  his  terms  for 
the  second  sale  he  saw  the  necessity  of  adopting  a  course  that 
would  prevent  another  failure,  and  it  was  for  that  reason  alone, 
r.s  tho  whole  case  fully  shows,  and  from  no  desire  to  oppress  or 
injure  the  defendants,  that  he  required  the  payment  in  cash  at 


318  CASES  IN  CHANCERY, 


Coxe   v.  Haleted  et  nl. 


tlie  time  of  the  sale  of  one-fourth  of  the  purchase  money.  Un- 
der the  circumstances,  I  think  he  was  justified  in  so  doing.  So 
far  from  any  disposition  being  manifested  by  the  master  or  by 
the  complainant  to  be  oppressive  in  their  course,  the  whole  evi- 
dence would  lead  me  to  think  directly  the  reverse.  This  execu- 
tion was  issued  on  the  9th  of  August.  The  property  was  adver- 
tised first  for  the  12th  of  October.  On  that  day  it  was  adjourned, 
at  the  request  of  the  defendants,  to  the  12th  of  November ;  and 
on  that  day  it  was  again  further  adjourned,  on  the  like  request,  to 
the  26th  of  the  same  month,  the  day  of  the  first  sale.  Upon  default 
being  made  by  the  purchasers  to  comply  with  the  terms  of  sale, 
the  property  was  advertised  by  the  master  again  for  the  2d  of 
March,  and  then  again,  at^the  instance  of  the  defendants,  post- 
poned until  the  30th  of  the  same  month,  on  which  day  and  the 
day  after  the  sale  took  place.  Between  six  and  seven  months 
thus  passed  after  the  execution  was  placed  in  the  master's  hands 
before  the  final  sale  was  made,  and  every  adjournment  and  de- 
fault made  by  the  defendants.  This  does  not  look  like  a  disposi- 
tion to  oppress  the  defendants,  or  to  enable  the  complainant  to 
become  the  owner  of  the  property.  I  have  no  such  impression. 
The  complainant  wanted  his  money,  and  took  such  steps  as  he 
had  a  legal  right  to  do  to  procure  payment.  At  the  first  sale,  as 
the  property  in  the  different  parcels  brought  sufficient  to  pay  his 
debt,  he  let  others  become  the  purchasers;  and  it  is  manifest  that 
he  became  the  purchaser  at  the  second  sale  for  the  only  reason 
that  others  would  not  bid  enough  to  pay  his  debt,  and  he  thought 
it  more  for  his  interest  to  buy  it  in  himself  than  to  meet  the  loss. 
The  master,  who  is  examined  by  the  defendants,  says,  that  in 
settling  the  conditions  of  the  sale,  h.e  was  not  influenced  by  the 
wishes  or  views  of  the  complainant.  He  seems  to  have  acted 
with  a  correct  estimate  of  the  position  he  occupied  as  a  public 
officer,  bound  to  do  that  which  under  all  the  circumstances  was 
right  in  itself,  without  following  the  dictation  or  control  of  any 
person.  At  first  he  designed  to  require  a  payment  in  cash  of  one- 
third  of  the  purchase  money,  but  changed  it  at  the  suggestion 
of  the  defendants  to  one-fourth. 


APRIL  TERM,  1840.  319 


Coxe   v.    Hnls'ed  et  al. 


6.  That  the  lot  of  twenty-three  acres  should  have  been  subdi- 
vided and  sold  in  parcels.  The  general  rule  is  well  settled,  tint 
where  a  tract  of  land  is  divided  into  distinct  parcels,  it  must  bs 
sold  in  that  way.  Wood  v.  Mondl,  1  John.  Ch.  505 ;  3L>- 
hawlt  Bank  v.  Atwater,  2  Paiges  Ch.  61.  See  also  the  cass 
of  Meroin  and  others  v.  Smith  and  others,  in  this  court.  Does 
this  case  come  within  that  rule  ?  This  is  the  important  inquiry. 
After  a  careful  examination  of  the  evidence,  and  with  an  earnest 
desire  to  protect  the  defendants  from  any  abuse  of  their  rights,  I 
have  come  to  the  conclusion  that  I  cannot  disturb  this  sale  upon 
this  ground.  There  are  several  considerations  which  forbid  it. 

1.  The  land  is  not  subdivided  into  distinct  parcels  so  as  to 
free  the  complainant  from  embarrassment  in  attempting  to  sell  it 
in  lots.     This  twenty-three  acre  lot  was  purchased  a  few  years 
since,  when  property  brought  a  high  price,  of  the  complainant,  it 
being  an  open  field  in  the  ordinary  situation  of  farm  lands.  The 
defendants  intended  to  turn  it  into  building  lots,  and  with  that 
view  laid  streets'  across  it  in  different  directions  and  made  some 
improvements  upon  part  of  it,  by  building  a  basin,  store-house 
and  lime-kiln.     These  streets,  however,  it  seems  from  the  evi- 
dence, are  not  laid  out  according  to  law,  nor  in  many  instances 
are  they  even  defined  by  fences.     Much  of  the  land  lies  in  com- 
mon.    It  is,  in  fact,  one  among  many  of  those  unfortunate  cases 
in  which  lands  lying  in  the  neighborhood  of  towns  and  cities 
have  been  set  apart  on  paper  for  extensive  improvements,  but 
which  have  failed  from  the  embarrassments  of.  the  times,  and 
that,  too,  with  great  loss  to  the  purchasers.     To  oblige  a  master 
or  sheriff  to  be  bound  by  such  subdivisions  of  property,  would  bo 
attended  with  great  uncertainty,  and  be  a  perversion  of  the  spirit 
and  intention  of  the  rule. 

2.  The  decree  and  execution  in  this  case  fixed  the  order 
in  which  the  property  should  be  sold,  and  the  sale  has  been  in 
conf  ormity  with  them.     There  was  great  care  taken  at  that  time 
to  secure  the  rights  of  all  parties,  and  y<jt  this  question  of  selling 
this  lot  in  parcels  was  never  agitated. 

3.  At  the  first  sale  of  this  property,  the  twenty-three  acres  were 


320 


Coxo  v.  Halsted  et  al. 


sold  in  one  parcel  without  objection,  and  purchased  by  one  of  the 
defendants,  who  failed  to  comply  with  the  terms,  and  now  upon 
this  resale  for  the  first  time  is  this  difficulty  interposed.  Had  it 
been  considered  important  to  have  the  lot  subdivided,  it  is  some- 
what singular  that  it  was  not  suggested  at  an  earlier  day,  and 
particularly  before  the  first  sale  was  made. 

4.  The  great  reason  which  would  have  induced  me  to  direct  a 
resale  of  this  lot  (had  I  found  that  course  consistent  with  those 
principles  which  must  govern  the  case)  would  have  been,  that 
"W.  H.,  one  of  the  defendants,  had  placed  improvements  on  a 
part  of  this  lot.     But  the  master  testifies  distinctly  that  Mr.  H. 
acceded  to  the  selling  of  the  property  in  the  way  in  which  it  wr.s 
sold,  and  to  the  terms  of  sale.     This  consent  must  take  away, 
therefore,  any  complaint  from  that  quarter. 

5.  The  act  which  authorizes  a  defendant  to  elect  what  part  of 
his  land  shall  be  sold  by  the  sheriff  on  execution,  by  serving  a 
notice  on  him  twenty  days  previous  to  the  sale,  does  not  apply  to 
this  case.     That  act  is  confined  to  cases  where  a  part  only  of  the 
lands  are  necessary  to  be  sold  to  satisfy  the  execution.  Here  the 
whole  was  decreed  to  be  sold,  and  that  too  upon  a  report  of  the 
master  that  it  was  necessary ;  and  the  result  has  shown  that  all 
the  property  was  not  sufficient  to  satisfy  the  complainant's  debt. 
Acting  within  the  spirit  of  that  act,  however,  it  was  right,  and  the 
master  accordingly  did  follow  the  written  request  of  the  defend- 
ants as  far  as  he  found  it  safe  to  do  so. 

As  I  have  not  been  able  to  satisfy  myself  of  the  propriety  of  in- 
terfering with  this  sale  upon  any  of  the  grounds  taken,  the  rule 
to  show  cause  must  be  discharged,  and  the  master  must  proceed 
in  executing  the  deeds  under  the  sale.  As  somo  questions  have 
been  presented  which  were  reasonable  and  proper  for  the  defend- 
ants to  have  settled,  I  shall  make  the  order  without  costs. 

Order  accordingly.  ; 

CITED  in  Allen  v.  Cole,  \.Sioek.  287;  Crane  v.  Lrigham,  fl  Stock,  03; 
Carpenter  'v,  Muchmorc,  2  Me  Car.  125  ;  Vanduync  v.  Vandiiyne,  1 
C.  E  Cr.  94. 


CASES 

ATWUDOF.D   IS 

THE    COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW- JERSEY. 
JULY   TERM,   1840. 


NICHOLAS  NEVILLE  v.  ALBEET  C.  DEMEKITT  and  others. 

An  order  allowing  u  defendant  to  examine  his  co-defendant  as  n  witness,  will 
elwuycj  bo  granted  upon  a  suggestion  that  tho  party  to  bo  examined  Las  no 
interest  in  tho  cause,  leaving  the  question  of  interest  to  bo  settled  at  the 
hearing  upon  the  proofs. 

A  mere  tnasteo  may  always  be  examined  ns  a  witness  by  a  co-defendant.  II. 
it  turns  out  upou  the  hearing  that  lie  has  an  interest  iu  tho  cause — that  a 
decree  my  bo  obtained  against  him,  although  it  be  for  costs  only,  his  te*>- 
tiiaouy  will  bo  excluded. 

The  adinisfibility  of  the  evidence  depends  on  the  question,  whether  the  wit- 
ness lies  any  interest  beyond  that  of  a  inero  trustee.  If  ho  has  any  individ- 
ual conctru  iu  the  case,  the  evidence  is  incompetent. 

Where  the  interest  of  a  witness  may  be  release  i  by  tho  party  offering  him,  and: 
no  objection  i.-i  made  to  the  witness  on  his  examination,  nil  objection  mado 
for  tho  first  timo  at  the  hearing  will  not  ba  sustained,  without  giving  the 
parly  off  Tin; »  him  au  opportunity  to  release  that  ia1. crest  and  to  re-eiainino. 
tho  \vi.ness. 

Par tiesaro  always  examined  as  witnesses,  by  the  rery  terms  of  tho  orders, 
subject  to  all  just  exceptions  at  tbe  hearing.  But  witnesses,  not  parties,, 
should  bo  objected  to  at  the  time  of  their  examination. 

The  declaration,  I  y  a  witness,  of  his  intention  to  pay  a  Bum  of  money  rather 
than  tlio  party  should  lose,  will  not  render  the  witness  incompetent,  unloiu 
he  bo  legally  responsible  for  the  money. 

An  answer,  so  far  aa  it  ia  a  response  to  the  bill,  will  avail  tho  defendant 
42 


322  CASES  IK  CSAKCERY, 


Neville  v.  Demeritt  et  nl. 


uale  «  it  be  overcome  by  the  testimony  of  witnesses;  but  so  fur  aa  i  seta 
up  new  matter  it  must  be  proved. 

It  ia  a  rule  in  equity  that  au  ineumbraaco  shall  be  kept  alive  or  considered 
ex.iuguished,  as  will  mofet  advance  the  justice  of  tho  case. 

Where  a  d»  ed  was  delivered  through  mistake  beforo  the  whole  of  the  purchase 
money  was  paid  or  secured,  too  grantor  was  permitted  to  protect  himself 
ngainst  the  effects  of  the  mistake,  by  keeping  alive,  in  tho  hands  of  a  trus- 
tee, au  iucumbrance  on  the  premised  cror.ttd  by  himr.olf  before  the  sale,  al- 
though tho  dead  contained  covenants  of  general  warranty,  and  against  all 
iucumbrar.ccs. 

BILL  for  foreclosure,  filed  April  3,  1838,  stated,  that  the  de- 
fendants, Albert  C.  Demeritt  and  wife,  on  the  first  day  of  Octo- 
ber, 1836,  executed  to  Horace  H.  Ladd  a  bond  and  mortgage  to 
secure  the  payment  of  eight  thousand  dollars,  in  one  year  from 
the  date  thereof,  with  interest.  The  mortgage  was  upon  a  house 
and  lot  in  the  city  of  Newark,  and  was  acknowledged  on  the 
28th  day  of  October,  1836.  That  the  mortgagee,  Horace  H. 
Ladd,  on  the  28th  day  of  November,  1836,  assigned  the  said 
Ixmd  and  mortgage  to  the  complainant.  That  the  assignment 
of  the  mortgage  was  duly  acknowledged,  and  was  recorded,  to- 
gether with  the  mortgage,  on  the  29th  day  of  November,  1S36, 
in  the  clerk's  office  of  the  county  of  Essex.  That  the  mortgaged 
premises  were  conveyed  to  said  Albert  C.  Demeritt  by  William 
Tnttle  and  wife,  by  deed  dated  the  19th  day  of  February,  1836, 
for  the  consideration  of  thirteen  thousand  five  hundred  dollars, 
by  which  deed  the  said  William  Tuttle  covenanted  that  he  was 
the  lawful  owner  of  the  said  premises ;  that  at  the  time  of  the 
execution  of  the  said  deed,  the  premises  were  not  incumberecT 
by  any  mortgage,  judgment,  or  limitation,  or  by  any  incum 
branee  whatsoever,  by  which  the  title  of  the  said  Albert  C.  De- 
meritt to  said  premises  could  or  might  be  changed,  charged,  al- 
tered or  defeated ;  that  the  said  William  Tattle  and  wife  had 
good  right,  full  power,  and  lawful  authority  to  sell  and  convey 
the  said  promises  in  fee ;  and  also,  that  lie  the  said  William 
Tuttlo  would  warrant,  secure,  and  for  ever  defend  tho  said 
premises  unto  the  said  Albert  C.  Demeritt,  his  heirs  and  assigns, 
against  tho  lawful  claims  and  demands  of  all  and  every  person 


JULY  TERM,  1840.  323 


Neville  v.  Di  merit t  ct  al. 


and  persons,  freely  and  clearly  freed  and  discharged  of  and  from 
all  manner  of  incumbrances  whatsoever.  That  the  said  William 
Tuttle  and  wife,  before  making  the  said  deed  of  conveyance  to 
Albert  C.  Demeritt,  on  the  31st  day  of  May,  1834,  executed  a 
deed  of  mortgage  upon  apart  of  the  same  premises,  to  Edward 
Blackford,  John  Agg,  Francis  G.  Blackford  and  William  B. 
Blackford,  to  secure  a  bond  given  by  the  said  William  Tuttle, 
conditioned  for  the  payment  of  one  thousand  dollars  with  inter- 
est, on  the  31st  of  May,  183C,  which  was  duly  recorded  in  the 
clerk's  office  of  the  county  of  Essex,  and  on  the  26th  of  June, 
1835,  was  assigned,  with  the  bond,  to  George  Douglass.  That 
Douglass,  having  occasion  for  the  money  secured  by  the  said 
bond  and  mortgage,  called  on  WiWam  Tuttle  to  pay  the  same; 
but  that  the  said  William  Tuttle,  tc  preyent  a  prosecution  being 
commenced  against  him  upon  the  said  bond,  and  with  an  intent 
to  defraud  the  said  Albert  C.  Demeritt  and  his  assigns,  and  com- 
pel his  assigns  to  pay  and  satisfy  the  said  bond  and  mortgage, 
contrary  to  and  in  express  violation  of  the  covenants  contained 
in  the  said  deed  made  by  the  said  William  Tuttle  and  wife  to  the 
said  Albert  C.  Demeritt,  and  for  the  purpose  and  with  the  inten- 
tion of  setting  up  the  said  bond  and  mortgage  as  an  outstanding 
valid  and  existing  claim  upon  the  premises  therein  described,  by 
a  combination  and  contrivance  with  his  son  Joseph  N.  Tuttle, 
cither  directly  or  indirectly,  on  or  about  the  14th  of  August, 
183G,  procured  an  assignment  of  the  said  bond  and  mortgage 
to  be  made  to  the  said  Joseph  N.  Tuttle,  who  still  holds  the 
same,  and  claims  by  virtue  thereof  an  interest  in  the  mortgaged 
premises.  That  the  said  Joseph  N.  Tuttlo  has  not  any  direct 

•interest  in  the  said  bond  and  mortgage  so  assigned  to  him,  or  in 
the  monies  secured  thereby,  but  holds  the  same  as  agent  or  tnu> 
tee  for  the  eaid  William  Tuttle,  who  furnished  the  means  paid 
to  George  Douglass  as  the  consideration  of  the  said  assignment; 

j  and  insists  that  tho  said  bond  and  mortgage  should  be  decreed 
to  bi  delivered  up  to  be  canceled.  The  bill  further  insists,  that 
even  if  William  Tuttle  did  not  funish  the  means  paid  as  the 
consideration  for  said  assignment  to  Joseph  N.  Tuttle,  and  the 


324  CASES  IN  CHANCERY, 


Neville  v.  Demeritt  et  al. 


aid  mortgage  remains  in  liis  hands  a  valid  and  subsisting  lieu 
upon  the  said  mortgaged  premises,  yet  that  William  Tuttla 
ought,  in  order  to  avoid  circuity  of  action,  to  be  compelled  by 
virtue  of  the  covenants  contained  in  his  deed  to  Albert  C.  De- 
meritt, (to  the  full  benefit  and  protection  of  which,  the  com- 
plainant insists  he  is  entitled,)  to  satisfy  and  cancel  the  said  bond 
and  mortgage  given  by  the  said  William  Tuttle  and  wife,  and 
assigned  to  the  said  Joseph  ~N.  Tuttle,  and  relieve  the  mortgaged 
premises  from  the  same  ;  or,  in  case  the  mortgaged  premises 
should  be  liable  to  pay  the  same,  and  should  not  bring  sufficient 
to  pay  and  satisfy  the  complainant's  mortgage,  then  that  William 
Tuttle  should  be  compelled  to  pay  the  amount  due  upon  tho 
.bond  and  mortgage  given  by  him  and  assigned  to  Joseph  !N". 
Tuttle,  if  the  deficiency  arising  upon  the  sale  of  the  mortgaged 
premises  shall  amount  to  that  sum,  or  so  much  thereof  as  will 
gatisfy  such  deficiency.  The  bill  prays  the  usual  decree  for 
foreclosure  and  sale  of  the  mortgaged  premises ;  that  Joseph  N". 
Tuttle  and  William  Tuttle  may  be  decreed  to  deliver  up  tho 
said  mortgage  so  given  by  tho  said  William  Tuttle  and  assigned 
to  Joseph  N.  Tuttle,  to  be  cancelled ;  that  the  said  William 
Tuttlo  may  be  compelled  to  satisfy  and  cancel  the  £ame,.and  re- 
lieve the  said  mortgaged  premises  therefrom,  and  be  decreed  to 
keep  and  perform  the  covenants  contained  in  his  deed  to  Albert 
C.  Demeritt ;  the  complainant  decreed  to  be  entitled  to  the  full 
benefit  arid  protection  of  said  covenants,  and  bo  protected  from 
and  against  the  eaid  mortgage  held  by  Joseph  N.  Tuttle ;  and 
tliat  William  Tuttlo  may  bo  decreed  to  satisfy  any  deficiency 
that  may  arise  in  satisfying  complainant's  mortgage  by  reason 
of  the  said  mortgage  asssigned  to-  Joseph  N.  Tuttle. 

The  answer  of  William  Tuttle  admits  the  execution  of  tho 
deed  from  himself  and  wife  to  Albeit  C.  Demeritt,  the  prior 
mortgage  from  Tuttle  and  wife  to-  Edward  Blackford  and  others, 
and  its  assignment,  as  set  forth  in  the  complainant's  bill ;  but 
fttatcs,  that  on  or  about  the  1st  of  April,  1835,  this  defendant, 
while  tho  owner  and  in  possession  of  said  premises,  agreed  witb 
William  T.  Voorhics  (liis  nephew)  to  sell  a  part  of  the  mort- 


JULY  TERM,  1840.  325 


Neville  \.  Deraeritt  et  al. 


gaged  premises  described  in  the  bill  of  complaint  to  him,  for  the 
consideration  of  two  thousand  two  hundred  dollars,  to  be  paid 
or  secured  by  said  Voorhies  on  the  delivery  of  the  deed.  That 
it  was  understood  and  agreed  between  this  defendant  and  said 
Voorhies,  that  the  lot  should  be  conveyed  free  and  clear  of  all 
incumbrances,  and  that  so  much  of  the  consideration  money  to 
be  paid  by  Voorhies  as  should  be  necessary  for  that  purpose, 
•  should  be  applied  to  the  payment  and  satisfaction  of  tho  said 
mortgage  given  by  defendant  to  Edward  Blackford  and  others. 
That  Voorhies  and  this  defendant,  having  full  confidence  in 
each  other,  the  agreement  between  them  was  not  reduced  to 
writing,  nor  was  any  memorandum  made  thereof.  That  Voor- 
khies  being  unprepared  to  pay  the  purchase  money,  no  deed  was 
made  to  him,  but  he,  with  the  knowledge  and  consent  of  this 
defendant,  took  possession  of  the  said  lot,  and  in  the  summer  of 
1835  erected  thereon  and  on  an  adjoining  lot  owned  by  Voorhies, 
two  large  brick  buildings.  That  at  different  times  during  the 
summer  and  fall  of  1835,  Voorhies  paid  this  defendant  two  hun- 
dred and  eighty-one  dollars  and  sixty-three  cents,  in  part  pay- 
ment of  the  sum  of  two  thousand  two  hundred  dollars,  agreed 
to  be  paid  as  the  purchase  money  of  said  lot,  and  for  the  interest 
thereon.  That  in  the  month  of  February,  1836,  Voorhies  in- 
formed this  defendant  that  he  had  agreed  to  sell  the  said  lot,  with 
other  real  estate,  to  Albert  C.  Deineritt,  who  had  agreed  to  pay 
to  this  defendant  the  remainder  of  the  price  stipulated  to  be  paid 
by  Voorhies  to  this  defendant,  which  then  amounted  to  about 
two  thousand  dollars,  as  follows,  viz :  to  pay  one  thousand  dol- 
lars in  money  on  the  delivery  of  the  deed,  and  to  secure  the  pay- 
ment of  the  remaining  one  thousand  dollars,  with  interest,  in 
one  year,  by  bond  and  mortgage  upon  the  said  lot,  and  request- 
ed this  defendant  to  convey  the  lot  directly  to  Albert  C.Demcritt, 
which  defendant  agreed  to  do  when  Demeritt  complied  with  the 
terms  above  stated.  That  Voorhies  caused  a  deed  for  said  lot, 
from  this  defendant  and  wife  to  Demeritt,  to  be  prepared,  which 
was  duly  executed  and  acknowledged,  and  which  defendant  ad- 
mits was  the  same  deed  as  that  set  forth  in  tho  bill  of  complaint 


326  CASES  IN  CHANCERY, 

Neville  v.  Demerittet  al. 

That  said  deed  was  retained  by  defendant  in  his  hands  until 
D.A.IL  esquire,  by  whom  the  said  deed  was  prepared,  and  who 
defendant  believed  acted  as  attorney  both  for  Voorhies  and  De- 
raeritt  in  the  tranaction  of  the  business,  handed  to  defendant  a 
bond  executed  by  A.C.Demeritt  to  this  defendant,  bearing  dale 
February  19th  1836,  conditioned  for  the  payment  of  one  thou- 
sand dollars  in  one  year  from  date,  with  interest  half-yearly,  and 
also  a  mortgage  to  secure  the  payment  thereof,  made  and  exe- 
cuted by  A.C.Demeritt  and  wife  to  defendant,  upon  the  lot  de- 
scribed in  the  last  mentioned  deed ;  and  the  said  D.  A.IT,  at  the 
same  time  requested  defendant  to  hand  him  the  deed  of  convey- 
ance executed  by  defendant  and  wife  to  Demeritt,  as  before  men- 
tioned ;  and  this  defendant  being  informed  by  D.  A.  II.  that 
Voorhies  and  Demeritt  had  settled  between  themselves  the  mat- 
ters connected  with  the  transfer  of  the  said  real  estate,  and  be- 
lieving that  D. A.H.  fully  understood  the  terms  upon  which  this 
defendant  was  willing  and  had  agreed  to  convey  said  lot,  and 
that  he  would  not  deliver  the  said  deed  to  Demeritt  until  the  sum 
of  one  thousand  dollars,  agreed  to  be  paid  on  the  delivery  of  tl  e 
said  deed,  had  been  fully  paid  and  satisfied,  gave  the  said  deed 
to  D.  A.  H.  and  received  from  him  Demeritt's  bond  and  mort- 
gage. That  defendant  afterwards  learned  to  his  great  surprise, 
thatD.  A.- II.  was  ignorant  that  the  said  sum  of  one  thousand 
dollars  was  to  be  paid  on  the  delivery  of  the  deed,  and  that  he 

iliad  immediately  after  the  delivery  of  the  deed  to  him  by  defen- 
dant, lodged  it  in  the  clerk's  oifice  of  the  county  of  Essex,  and 
caused  the  same  to  be  recorded  according  to  law.  That  this  de- 
fendant shortly  afterwards  gave  notice  to  Demeritt  that  the  deed 
tad  been  put  on  record  through  mistake,  that  defendant  was  en- 

.  titled  to  receive  one  thousand  dollars  before  the  deed  was  rendered 
operative,  and  requested  Demeritt  to  pay  the  same,  which  he 

'  refused  or  neglected  to  do.  Admits  that  the  consideration  in  tho 
deed  from  defendant  and  wife  to  Demeritt  is  therein  stated  to  be 
thirteen  thousand  five  hundred  dollars,  and  that  it  is  expressed 
to  have  been  paid  by  Demeritt  to  this  defendant  and  his  wife  at 
the  execution  of  the  deed,  and  that  tho  receipt  thereof  is  thereby 


JULY  TERM,  1840.  327 


Neville  v.  Demeritt  ct  nl. 


acknowledged ;  but  expressly  denies  that  this  defendant  ever 
made  any  bargain  with  Demeritt  respecting  said  lot,  or  that  ho 
ever  had  any  communication  with  him  or  any  person  on  his  be- 
half respecting  the  sale  and  conveyance  of  said  lot,  before  tho 
communication  with  D.  A.  H.  above  referred  to  ;  that  ho  ha? 
ever  received  any  consideration  for  the  sale  and  conveyance  of 
the  said  lot,  other  than  the  sum  of  two  hundred  and  eighty-ono 
dollars  and  sixty-three  cents,  above  stated  to  have  been  paid  by 
Yoorhies,  and  the  further  sum  of  twenty-three  dollars  and  thirty- 
seven  cents,  interest  on  the  said  eum  of  two  thousand  dollars, 
up  to  the  date  of  the  deed  from  defendant  and  wif e  to  Demeritt, 
and  tho  further  sum  of  one  thousand  dollars  secured  by  De- 
meritt's  bond  and  mortgage  to  this  defendant.  States  that  at  the 
time  that  Demeritt,  while  negotiating  with  Voorhies  for  the  pur- 
chase of  the  lot,  was  apprised  that  the  title  was  not  in  him,  but 
in  this  defendant,  that  two  thousand  dollars  of  the  purchase  mo- 
ney agreed  to  be  paid  by  Voorhies  remained  unpaid,  and  that 
this  defendant  was  unwilling  to  deliver  a  title  until  one  thousand 
dollars  should  be  secured  by  mortgage,  and  the  remaining  ono 
thousand  dollars  should  be  paid  in  money,  which  this  defendant 
insisted  on  receiving  to  enable  him  to  discharge  his  mortgage. for 
one  thousand  dollars  upon  the  mortgaged  premises ;  and  that 
the  said  Demeritt  agreed  to  pay  the  said  sum  of  one  thousand 
dollars  in  money,  and  to  execute  a  bond  and  mortgage  to  this 
defendant  upon  the  said  lot,  on  the  delivery  of  the  deed  by  de- 
fendanL  That  at  the  time  of  receiving  the  deed  from  this 
defendant  and  his  wife,  Demeritt  knew  of  the  mortgage  thereon 
previously  given  by  this  defendant  and  Ins  wife  to  Edward 
Blackford  and  others,  and  that  the  same  remained  uncanceled, 
a  legal  incumbrance  upon  the  said  lot.  Admits  that  about  tho 
4th  of  August,  1836,  this  defendant,  being  called  upon  by  the 
agent  of  George  Douglass,  to  whom  the  bond  and  mortgage 
given  by  this  defendant  to  Edward  Blackford  and  others  had 
been  assigned,  for  the  payment  thereof,  raised  the  sum  of  one 
thousand  and  forty  dollars  and  sixty-seven  cents,  the  amount  of 
principal  and  interest  due  thereon,  and  thereby  procured  an  as- 


328  CASES. DT  CHANCEBY, 


Neville  v.  Demeritt  ct  al. 


signment  of  said  bond  and  mortgage  to  be  made  to  his  son  Jo- 
seph ~N.  Tuttle,  and  that  the  said  Joseph  N.  Tuttle  holds  tho 
t&id  bond  and  mortgage  as  trustee  and  agent  of  this  defendant, 
and  has  no  direct  interest  therein  or  in  the  monies  secured  there- 
by. Denies  that  the  said  assignment  was  by  the  defendant  pro- 
cured to  be  made  with  any  fraudulent  intent  or  purpose,  but 
solely  to  protect  himself  from  loss  or  injury  in  consequence  of 
the  recording  of  the  deed  of  conveyance  for  the  said  lot  through 
mistake  and  misunderstanding.  Insists  that  the  mortgage  exe- 
cuted by  this  defendant  and  wife,  and  held  by  Joseph  N.  Tuttle 
as  trustee  for  this  defendant,  is  a  valid  and  subsisting  lien  and 
incumbrance  on  the  lot  of  land  therein  described,  and  entitled  to 
priority  in  payment  over  any  mortgage  or  incumbrance  upon  the 
same  property  created  or  impose^  subsequent  to  the  registry  of 
the  said  mortgage. 

The  answer  of  Joseph  !N".  Tuttle  states  substantially  tho  same 
matters  contained  in  the  answer  of  "William  Tuttle,  and  admits 
that  he  holds  the  bond  and  mortgage  executed  by  William  Tut- 
tle and  wife  to  Edward  Blackford  and  others,  and  assigned  to 
him,  as  agent  or  trustee  for  the  said  "William  Tuttle. 

After  the  cause  was  at  issue,  an  order  was  made  on  the 
application  of  "William  Tuttle,  one  of  tho  defendants,  for  the 
examination  of  Joseph  "N.  Tuttle,  a  co-defendant,  in  pursuance 
of  which  order  tho  testimony  of  the  said  J.  N.  Tuttle  had  been 
taken  and  was  read  upon  the  hearing. 

The  cause  came  on  for  hearing  upon  the  bill,  answers  of  Wil- 
liam Tuttle  and  Joseph  "N.  Tuttle,  replications  and  proofs. 

E.  Vanarsdale,  jun.  and  E.  Vanarsdale,  for  complainant, 
insisted  that  J.  N.  Tuttle  was  not  a  competent  witness.  lie  is  a 
party  ;  he  may  pay  costs  or  receive  them.  By  his  answer  he 
prays  for  costs :  *2Mad.  Chan.  316 ;  3  J.  C.  R.  613;  3  Aik. 
401.  lie  is  also  a  trustee :  2  Brown? s  Ch,  Cfcwes,  330;  3  Paige, 
5G4.  That  Win.  T.  Voorhies  was  also  incompetent.  He  has  de- 
clared that  he  would  pay  tho  thousand  dollars  to  Tuttle  before  ho 
should  lose  it  IIo  is  also  interested,  for  UQ  ia  bound  to  pay  Tuttle, 


uULY  TEEM,  1840.  320 


Neville  v.  Demcrilt  ct  al. 


The  deed  from  Tuttle  to  Dementi;  is  absolute  on  its  face. 
There  was  no  declaration  of  a  contrary  intention  at  the  time  of 
executing  it.  Declarations  of  the  intention  or  understanding  of 

<j  o 

a  grantor,  different  from  the  intent  apparent  on  the  face  of  the 
deed,  or  of  conditions  annexed  to  it,  to  be  effectual,  must  be 
made  at  the  time  of  executing  it :  1  J.  C.  R.  240,  247,  251 ; 
Notfa  Rep.  C ;  0  Coke,  137. 

Tuttle  has  no  equitable  lien  upon  the  land  for  the  thousand 
dollars  remaining  unpaid.  He  took  security  on  the  land  for  a 
part  of  the  money,  and  never  intended  to  look  to  the  land  for 
the  balance :  1  Paige,  30. 

The  covenants  in  the  deed  from  "W.  Tuttle  to  Demeritt  run 
with  the  land.  There  is  a  breach  of  tho  covenant  against  in- 
cumbrances  and  the  assignee  of  the  mortgage  may  hold  him 
liable ;  3  Bam.  and  Aid.  392  ;  2  Cowen,  137,  143 ;  Cro.  Eliz. 
373,430;  Cro.  Car.  503;  4  M.  and  S.  53;  Platt  on  Cov. 
304  ;  3  Law  Lib.  135. 

The  mortgagee  is  entitled  to  the  benefit  of  these  covenants : 
18  Law  Lib.  151,  351 ;  1  Peters,  441 ;  4  Amer.  Com.  Laic, 
57. 

If  Tuttle  is  liable  on  the  covenants  contained  in  his  deed,  the 
court,  to  prevent  circuity  of  action,  will  hold  him  liable  at  once : 
5  Cranck,  322,  330 ;  17  Mass.  586 ;  7  John.  358  ;  13  John  105  ; 
1  Stores  Eq.  82-3-4. 

They  also  cited  18  Law  Lib.  161 ;  8  Mass.  S46  ;  4  Wash. 
587;  5  Cawen,  137,  608;  9  Cowen,  39;  10  Wend.  180;  5 
Peters,  483  ;  6  J.  C.  R.  393 ;  4  Mass.  629  ;  2  Brown's  Ch. 
Cos.  10  ;  2  V&sey,  400;  %  Paige,  557;  1  Conn.  147;  1  Story 'a 
Com.  173 ;  4  Peters,  85. 

A.  Armstrong  and  I.  II.  Williamson,  contra,  insisted  that  a 
mere  trustee  was  always  a  competent  witness  in  equity,  though 
a  party  to  the  suit:  2  Mad.  Chan.  331,415,447;  3  P.  W. 
181 ;  3  AtL  75 ;  1  BaU  and  Beatty,  99,  413  ;  3  AtJc.  95,  604 ; 
1  BaU.  and  Beatty,  96;  1  Bl.  Rep.  365;  12  East 
250. 

43 


330  CASES  IN  CHANCERY, 

Neville  v.  Demerit;  et  al. 

A  witness  will  not  be  excluded  on  the  ground  that  he  is  un- 
der an  honorable  obligation  to  pay  money :  he  must  be  under 
a  legal  obligation,  or  at  least  suppose  himself  to  be  so :  4  Wend. 
292 ;  18  Wend.  476;  1  Paige,  18. 

If  the  court  think  Yoorhies  incompetent  on  theground  of  in- 
terest, as  no  objection  to  his  competency  was  made  at  the  exam- 
ination, an  opportunity  should  be  afforded  to  release  the  inter- 
est and  re-examine  the  witness. 

They  also  cited  2  T.  It.  360  ;  18  Law  Lib.  107,  24-8  ;  Sup 
den  on  Yen.  385,  387,  541;  4  Hals.  139;  5  Hals.  20;  10 
We?id.  310;  \JoKn.  Gas.  114;  2  Wend.  308 ;  Daniel's  Ex. 
Rep.  71 ;  3  Pow.  on  Mort.  106  L  £. 

THE  CHANCELLOR.  On  the  1st  of  October,  1836,  Albert  C. 
Demeritt  and  his  wife  executed  to  Horace  II.  Ladd  a  mortgage 
on  a  house  and  lot  of  land  in  the  city  of  Newark,  to  secure  the 
payment  of  a  bond  for  eight  thousand  dollars,  in  one  year  from 
the  date  thereof.  This  bond  and  mortgage,  on  the  28th  of  No- 
vember following  their  date,  were  assigned  by  Ladd  to  the  com- 
plainant. The  object  of  the  bill  is  to  procure  the  foreclosure 
and  sale  of  the  premises  contained  in  the  mortgage,  to  satisfy 
the  amount  due  thereon.  No  question  is  made  respecting  this 
mortgage;  but  the  controversy  arises  upon  a  mortgage  on  a 
part  of  the  said  premises,  given  prior  to  the  complainant's,  (on 
the  31st  of  May,  1834,)  by  William  Tuttle,  a  former  owner,  to 
Edward  Blackford  and  others,  for  one  thousand  dollars.  Whe- 
ther, under  the  circumstances,  this  mortgage  for  one  thousand 
dollars  is  or  is  not  a  valid  and  subsisting  lien  on  the  property, 
is  the  whole  dispute  in  the  cause. 

The  mortgaged  premises  were  purchased  by  Albert  C.  De- 
mcrritt,  the  mortgagor,  with  a  large  amount  of  other  property, 
from  William  T.  Yoorhies.  At  the  time  of  the  purchase  Voor- 
hies  had  no  deed  for  the  property,  but  had  a  verbal  agreement 
with  his  uncle,  William  Tuttle,  to  convey  it  to  him  for  two  thou- 
sand two  hundred  dollars,  one  thousand  two  hundred  dollars  of 
which  was  to  be  paid  in  cash  before  receiving  a  deed,  and  tho 


JULY  TEKM,  1840.  331 


Nevi  le  T.  Demeritt  e   al. 


remainder,  being  one  thousand  dollars,  was  to  remain  on  bond 
and  mortgage.  Upon  the  f  aitli  of  this  agreement,  Voorhiea  went 
on  and  erected  on  the  lot  a  large  four-story  brick  building.  Voor- 
hies  had  paid  his  uncle  between  two  and  three  hundred  dollars 
only  at  the  time  he  sold  to  Demeritt,  and  the  agreement  (as  al- 
leged) between  Voorhies  and  Demeritt  was,  that  Demeritt  should 
take  Voorhies's  place  and  fulfil  his  contract  with  Tuttle.  It 
seems  that  Tuttle  had  nothing  to  do  with  the  contract  made 
between  Yoorhies  and  Demeritt,  and  was  therefore  on  his  part 
no  way  bound  to  vary  the  original  terms  of  his  agreement  for 
the  sale  of  the  lot. 

As  Demeritfc  was  now  substituted  in  the  place  of  Voorhies, 
Tuttle  was  entitled,  before  giving  him  a  deed,  to  receive  in 
cash  one  thousand  dollars,  and  a  bond  and  mortgage  for  one 
thousand  dollars.  This  would  fully  have  secured  the  purchase 
money,  and  was  a  very  natural  and  discreet  course.  Demeritt 
and  Voorhies,  in  their  negotiations,  employed  David  A.  Hayes 
esquire,  as  their  attorney  and  agent,  who  called  on  Tuttle  and 
obtained  the  deed  for  the  property,  and  gave  him  only  Demeritt's 
bond  and  mortgage  for  one  thousand  dollars,  but  no  money. 
Tuttle  says  in  his  answer,  that  reposing  great  confidence  in  Mr. 
Hayes,  and  supposing  he  knew  all  about  the  terms  on  which  the 
sale  was  made,  he  supposed  that  he  would  not  deliver  the  deed 
over  to  Demeritt  until  he  received  the  thousand  dollars  in  cash. 
He  relied,  in  other  words,  on  Mr.  Hayes  seeing  to  his  rights  in 
the  matter.  Mr.  Hayes,  in  his  deposition,  says,  that  he  was 
ignorant  of  the  terms  of  the  agreement  between  Voorhies  and 
Demeritt  in  its  details,  at  the  time  he  got  the  deed  from  Tuttle. 
That  when  he  handed  the  bond  and  mortgage  of  Demeritt  to 
Tuttle  for  one  thousand  dollars,  which  he  had  previously  caused 
to  be  executed,  and  asked  for  the  deed,  Tuttle  at  first  hesitated 
but  finally  gave  him  the  deed.  lie  recollects  something  being 
said  by  Tuttle  about  a  thousand  dollars,  but  he  supposed  at  the 
time  that  it  referred  to  the  thousand  dollars  secured  by  the  bond 
and  mortgage,  and  did  not  know  that  any  thing  moro  was  com- 
ing to  Mr.  Tuttle.  Mr.  Hayes,  after  receiving  tho  deed,  snp- 


332  CASES  IN  CHATOEKY, 


Neville  v.  Demeritt  et  al. 


posing  the  business  was  all  finished,  placed  it  on  record.  By 
this  course  Tuttle  parted  with  the  title  to  his  property,  and  re- 
ceived a  bond  and  mortgage  for  one  thousand  dollars,  but  with- 
out the  payment  of  the  remaining  thousand  dollars,  or  any  se- 
curity or  even  evidence  that  it  was  due  from  any  person.  Short- 
ly after  this,  and  as  I  suppose  on  being  aroused  from  so  negli- 
gent a  course  by  his  son,  he  sent  to  Mr.  Hayes  for  the  thousand 
dollars,  and  was  then  informed  that  he  had  not  received  it,  and 
had  placed  the  deed  on  record.  Application  was  made  to  De- 
meritt to  rectify  the  mistake,  but  ho  never  did  so.  Tuttle  then 
placed  his  bond  and  mortgage  for  one  thousand  dollars  on  rocord, 
which  has  since  been  paid  off  and  discharged. 

The  situation  of  the  lot  then  stood  thus.  Demeritt  had  the 
title.  There  was  upon  it  a  mortgage  of  one  thousand  dollars 
given  by  Tuttle  to  Blackford  and  others,  and  a  mortgage  of  one 
thousand  dollars  given  by  Demeritt  to  Tuttle.  The  object  of 
Tuttle  in  requiring  a  payment  in  cash  of  one  thousand  dollars, 
no  doubt  was  to  take  up  the  bond  and  mortgage  to  Blackford 
given  by  him,  and  for  which  he  was  liable  on  the  bond.  Things 
remained  in  this  situation  until  the  summer  of  1836,  when  the 
Blackford  mortgage  becoming  due,  George  Douglass,  to  whom 
the  same  had  been  assigned,  called  on  Tuttle  for  payment  of 
his  bond  and  mortgage,  who  advanced  the  money  and  caused 
an  assignment  of  the  papers  to  be  made  to  Jns  son  Joseph  !N . 
Tuttle,  in  trust  for  Iris  use.  The  answers  of  the  defendant  i 
frankly  declare  that  the  money  was  furnished  by  William  Tut- 
tle, and  the  assignment  made  with  a  view  to  protect  him  from 
loss  by  the  nonpayment  of  the  thousand  dollars  at  the  delivery 
of  the  deed.  The  assignment  of  the  bond  and  mortgage  is  in 
the  usual  form,  and  the  instruments  are  in  no  way  canceled,  ci- 
ther by  obliterating  the  names,  tearing  off  the  seals,  or  entering 
satisfaction  on  the  records.  Jn  form  the  proceedings  are  light. 
Thus  far  I  have  stated  the  facts  of  the  case,  as  they  present- 
ed  themselves  to  my  mind,  without  inquiring  into  the  legality 
of  the  proofs  by  which  they  arc  sustained,  or  settling  any  prin- 
ciples applicable  to  them.  These  will  now  bo  considered. 


JULY  TERM,  1840.  333 


Neville  v.  Demeritt  etal. 


Two  of  the  defendant's  witnesses,  and  those  important  to 
make  out  his  defence,  are  objected  to  as  incompetent ;  to  wit, 
Joseph  N.  Tuttle,  the  son  and  trustee  of  the  defendant  William 
Tuttle,  and  William  T.  Yoorhies,  the  original  purchaser  from 
Tuttle,  and  the  same  who  afterwards  sold  to  Demeritt.  After 
carefully  considering  the  objections  made,  I  can  sec  no  sufficient 
reason  for  excluding  them  as  witnesses.  The  positions  they 
occupy  with  respect  to 'this  transaction  can  only  affect  their 
credit.  Joseph  N.  Tuttle  has  no  interest,  as  he  declares,  and  as 
the  whole  case  shows.  He  is  a  mere  trustee  for  his  father.  In 
fact,  the  complainant  so  charges  in  his  bill,  and  it  is  on  this  very 
point  that  he  relies  for  defeating  the  defendant's  claim.  Had 
Joseph  purchased  this  bond  and  mortgage  with  his  own  money 
and  on  his  own  account,  no  question  could  be  made  as  to  his 
right  to  have  his  money  out  of  the  sale  of  the  property.  It  is 
because  he  is  a  mere  trustee,  and  the  whole  beneficial  interest 
in  his  father,  that  his  rights  under  the  mortgage  arc  denied. 
The  rule  which  allows  a  defendant  to  examine  his  co-defendant 
is  indispensable,  otherwise  a  complainant,  to  get  rid  of  a  witness, 
lias  only  to  make  him  a  party.  And  this  rule  will  always  be 
granted  Upon  a  suggestion  that  he  has  no  interest  in  the  cause, 
leaving  that  question  to  bo  settled  at  the  hearing  upon  the  proofs. 
A  mere  trustee  may  always  be  examined  as  a  witness  by  a  co- 
defendant  :  2  2fad.  CJian.  416.  If  it  turns  out  upon  the  hear- 
ing that  he  has  an  instercst  in  the  cause  ;  that  a  decree  may  be 
obtained  against  him,  although  it  bo  for  costs  only,  then  ho  will 
bo  excluded.  This  is  the  amount  of  the  cases  cited  from  3  Aik. 
401,  and  3  Johns.  Ch.  C12.  In  the  last  cited  case  the  witness 
had  a  decided  interest,  was  charged  as  a  particeps  criminis^ 
and  was  to  be  affected  by  the  result  of  the  cause.  The  cases  on 
this  point  arc  numerous,  but  they  all  turn  on  the  same  question. 
Has  the  witness  any  interest  beyond  that  of  a  mere  trustee  ?  has 
he  any  individual  concern  in  the  case  ?  if  ho  has,  ho  must  bo 
shut  out ;  if  not,  he  is  a  good  witness.  What  interest  has  Jo- 
seph N.  Tuttle  in  this  case  beyond  that  of  a  nake \  trustee  3  Ho 
paid  no  money,  he  holds  the  assignment  for  another,  and  whcth- 


334  CASES  IN  CHANCERY, 

Neville  v.  Demeritt  et  al. 

er  the  decision  shall  be  for  or  against  the  defendants,  it  can  make 
no  difference  to  him.  It  is  said  that  he  asks  for  costs  in  hia  an- 
swer. That  is  true  ;  and  so  does  every  defendant  in  his  answer : 
it  is  the  form  in  which  they  are  drawn.  As  to  costs,  I  can  place 
no  trustee  in  a  fairer  position  than  this  witness,  and  to  exclude 
him  on  that  account  would  be  to  change  the  rule  admitting 
trustees  as  witnesses,  and  shut  them  out  entirely. 

The  other  witness  objected  to  is  William  T.  Yoorhies.  He  is 
no  party  to  the  suit,  and  therefore  as  to  him  it  is  a  mere  question 
of  interest.  That  interest,  if  any,  must  consist  in  his  liability 
over  to  William  Tuttle  for  the  thousand  dollars.  No  objection 
vas  taken  to  this  witness  on  his  examination,  and  in  a  case 
where  that  interest  might  be  released  by  the  party  offering  him, 
I  would  certainly  not  sustain  such  an  objection  for  the  first  time 
made  at  the  hearing,  without  giving  an  opportunity  to  release 
that  interest  and  for  a  re-examination,  if  the  party  thought  pro- 
per. As  to  parties,  they  are  always  examined  as  witnesses,  by 
the  very  terms  of  the  order,  subject  to  all  just  exceptions  at  the 
hearing ;  but  tliis  is  not  so  in  the  case  of  witnesses  not  parties. 
They  should  be  objected  to  at  the  time  of  their  examination. 
;  This  is  the  rule  in  the  state  of  New- York  :  MoJiawk  Bank  v. 
Atwater,  2  Paiges  Cli.  60  ;  and  tho  same  will  bo  found  sug- 
gested in  tho  case  of  the  Etfrs  of  Ilowell  v.  Autcn  and  others, 
as  tho  true  practice  in  this  court.  But  in  this  case,  had'  the  ob- 
jection been  taken  at  the  proper  time,  I  do  not  consider  the  wit- 
ness interested  in  the  cause.  Tuttle,  by  accepting  Demeritt  as 
the  purchaser,  and  dealing  with  him  upon  the  same  terms  as 
'  Voorhies,  virtually  released  Voorhies  from  all  further  liability 
to  him  ;  especially  so  upon  his  neglect  to  avail  himself  of  that 
part  of  his  contract  which  called  for  tho  payment  of  one  thou- 
sand dollars  in  money  before  giving  the  deed.  After  this,  he  had 
no  claim  on  him.  Voorhies  has  indeed  said,  that  rather  than 
Tuttlo  should  lose  the  thousand  dollars  he  calculated  to  pay  it, 
but  did  not  feel  bound  to  do  so.  This  is  one  of  those  calculations 
which  will  bo  found  very  seldom  realized,  and  at  best  but  the 
expression  of  an  honorable  feeling,  which  can  never  be  set  up  aa 


JULY  TEUM,  1840.  335 


Neville  v  Demeri't  et  ul. 


a  sound 'object ion  to  any  witness,  unless  he  be  legally  responsible 
for  the  money.  These  witnesses,  therefore,  are  in  my  judgment 
competent,  and  their  evidence  should  be  read  in  the  cause. 

By  the  admission  of  this  evidence,  the  case  is  relieved  from  all 
embarrassment  as  to  the  true  state  of  the  facts,  and  they  will  bo 
found  to  be  correctly  considered  in  the  first  part  of  this  opinion. 
The  answers  of  the  defendants  correspond,  so  far  as  Joseph  has 
any  knowledge  of  the  facts,  and  the  whole  case  is  confirmed  in 
the  view  which  I  have  taken  of  it  by  the  depositions  in  the 
cause.  Much  of  the  matter  in  the  answers  is  not  responsive  tD 
the  bill,  and  much  is.  The  rule  is  well  settled  on  this  point, 
that  the  answer,  so  far  as  it  is  a  response  to  the  bill,  will  avail 
the  defendant,  unless  it  be  overcome  by  the  testimony  of  the 
witnesses;  but  that,  so  far  as  it  sets  up  new  matter,  it  must  be 
proved.  I  need  not  go  into  any  critical  examination  on  this  part 
of  the  case,  for  it  will  be  found  that  the  answer  of  the  defend- 
ant, so  far  as  it  is  not  responsive  to  any  charges  in  the  bill,  has 
been  fully  sustained  by  the  witnesses.  Yoorhies  sustains  the 
answer,  by  stating,  that  he  was  to  pay  Tuttle  for  the  lot  two 
thousand  two  hundred  dollars  ;  that  he  was  to  pay  one  thousand 
two  hundred  dollars  on  receiving  his  deed,  and  secure  the  balance 
on  bond  and  mortgage ;  that  in  his  negotiations  with  Demeritt 
he  told  him  what  his  agreement  with  Tuttle  was,  that  he  had 
paid  two  hundred  dollars,  and  that  he,  Demeritt,  when  he  took 
his  deed,  must  pay  one  thousand  dollars  and  secure  the  remain- 
ing thousand  dollars  by  bond  and  mortgage,  and  that  Demeritt 
acceded  to  those  terms.  David  A.  Hayes  proves  the  transaction 
as  it  took  place  when  the  deed  was  given,  and  that  the  thousand 
dollars  was  never  paid.  He  says  Demeritt  told  him' in  a  conver- 
sation he  had  with  him  since,  that  there  was  a  thousand  dollars 
coming  on  the  lot,  and  that  he  would  pay  it  to  Voorhies  when 
he  fulfilled  his  contract.  And  Joseph  K.  Tuttle  says,  that  when 
he  came  home  and  learned  how  the  business  stood,  ho  went  to 
New- York  in  company  with  Mr.  Hayes,  to  see  Mr.  Domcritt ; 
and  that  although  he  cannot  recollect  the  particulars  of  (he  con- 
versation, yet  that  Demeritt  did  assent  to  the  proposition  then 


336  CASES  IK  CHANCERY, 


Neville  v.  Demeritfc  et  al . 


made  to  him  to  pay  tho  thousand  dollars,  and  ho  left  him  satis- 
fied that  he  would  do  so  if  he  could  raise  the  money. 

From  all  this  evidence,  I  can  entertain  no  doubt  as  to  tho 
nature  of  this  transaction,  and  that  Mr.  Tuttlo  was  entitled  to 
receive  from  Demeritt  in  cash  one  thousand  dollars  more  than  he 
got  at  the  time  of  delivering  the  deed  to  Mr.  Hayes.  I  cannot 
suppose  that  he  would  designedly  let  the  title  for  his  property 
pass  out  of  his  hands,  without  at  least  eome  evidence  in  his  pos- 
session of  the  amount  due  him  for  the  purchase  money.  lie  has 
a  clear  equity  to  be  restored  to  this  money  as  against  Demeritt  and 
all  others  who  may  not  be  injured  by  thus  reinstating  him  in  his 
rights.  Had  Tuttlo  received  this  money  he  would  have  taken 
up  the  Blackford  mortgage,  and  all  would  have  been  right  and 
according  to  tho  contract  of  the  parties ;  and  if  not,  ho  must 
have  been  liable  on  tho  covenants  in  his  deed.  Demeritt  at  first 
probably  thought,  that  as  tho  mortgage  was  still  on  the  property, 
it  would  not  make  much  difference  whether  Tuttlo  got  the  mo- 
ney from  him  or  not ;  but  since  then,  having  got  into  some  diffi- 
culty with  Yoorhies,  ho  claims  to  have  the  property  discharged 
altogether,  and  make  Tuttle  look  to  Yoorhies  for  his  money. 
This  would  be  rank  injustice,  and  do  violence  to  tho  whole  spirit 
of  the  contract. 

The  property  should  pay  this  mortgage,  and  it  remains  only 
to  be  seen  whether  the  court  have  the  power  so  to  direct.  I  can- 
not doubt  cither  the  power  or  the  duty  of  the  court  so  to  do.  Tho 
bond  and  mortgage  are  not  canceled.  Tho  mortgage  remains 
open  on  tho  record,  and  has  always  remained  there  as  notice  to 
all  the  world  that  the  lot  it  covers  was  bound  to  discharge  it.  Mr. 
Hayes  says  that  ho  gave  actual  notice  of  its  existence  to  Demeritt 
before  ho  took  the  title,'  and  whether  tho  other  parties  ever  ex- 
amined it  or  not,  the  record  was  constructive  notice  to  them.  It 
is  a  rule  in  equity,  that  an  incumbrance  shall  bs  kept  alive  or 
considered  extinguished,  as  shall  most  advance  tho  jtistics  of  tho 
case :  Starr  v.  Ellis,  G  Johns.  Ch.  395.  "Why  should  the  aid 
of  the  court  bo  given  tho  complainant  to  declare  this  mortgage 
discharged,  of  which  he  had  notice,  and  which  upon  every 


JULY  TERM,  1840. 


Neville  v.  Demeritt  et  al. 


principle  of  justico  should,  before  that  is  done,  be  paid  out  of  the 
property.  Had  the  parties,  when  Douglass  called  for  his  money, 
intended  to  put  theso  papers  out  of  existence,  or  had  innocent 
persons  -without  notice  bean  affected  by  it,  tho  case  would  have 
been  different ;  but  hero  it  so  turns  out  that  the  opportunity  is 
tiHordcd  of  doin^  complete  justice  to  a  party  without  injuring 
any  body,  and  I  feel  myself  bound  to  extend  the  aid  of  the  court 
for  that  purpose. 

There  is  one  other  view  of  this  case  presented  by  the  com- 
plainant's counsel,  which  must  not  be  overlooked.  They  insist 
that  if  equity  calls  for  the  allowance  to  the  defendant  of  the 
amount  of  this  mortgage,  at  all  events  he  is  liable  on  his  cove- 
nants in  his  deed  to  Demeritt,  of  which  the  complainant  may 
avail  himself,  and  that  to  avoid  circuity  of  action  the  court  will 
give  the  party  the  advantage  of  •  that  position,  and  settle  the 
whole  cause  at  once.  How  far  a  mortgagee  can  avail  himself  of 
these  covenants,  and  indeed,  how  far,  or  in  what  cases,  the  court 
will  adopt  this  principle,  it  is  not  now  material  or  necessary  to 
inquire,  since  from  the  view  I  have  taken  of  the  case,  there 
could  bo  no  such  liability  on  the  part  of  Tuttle  in  this  court,  nor 
indeod  in  any  other,  except  upon  the  technical  rules  applica- 
ble to  suits  in  a  court  of  law.  There  could  ba  no  justice  in 
his  paying  any  damages  by  reason  of  an  incumbrance  cir- 
cumstanced like  the  one  we  have  been  considering  in  this 
cause.  In  a  proper  case  for  its  exercise,  it  would  appejft*  to  me 
that  the  course  suggested  by  this  argument  is  sustained  by  the 
cases. 

I  am,  for  these  reasons,  of  opinion,  that  the  bond  and  mort- 
gage assigned  to  Joseph  N.  Tuttle,  is  a  valid  lien  on  the  mort- 
gaged premises,  and  entitled  to  be  first  paid,  with  the  defend- 
ants' cost  in  this  action.  They  will,  of  course,  stand  as  security 
for  no  more  than  is  due  Mr.  Tuttle  upon  his  contract  with  Mr. 
Yoorhies,  which  is  stated  to  be  one  thousand  dollars  with  in- 
terest from  tho  date  of  his  deed  to  Demeritt.  There  must  be 
a  reference  to  a  master  to  ascertain  this  amoun*,  together  with , 
44 


338  CASES  DT  CHANCERY, 


Nevilla  T.  Dcmeritt  et  al. 


the  amount  due  the  complainant  and  the  other  parties  having 
any  mortgage  or  other  claim  on  the  property. 
Order  accordingly. 

CITED  in  Hall  v.  Lambert,  3  Sal.  Ch.  653  ;  Miller  v.  Gregory,  1  C.  &  Gr. 
275 ;  Harrison's  Ad.  v.  Johnson,  3  G.  E.  Gr.  426  ;  Graham  v.  Berry - 
man,  4  C.  E.  Gr.  33;  Bcrrymanv*  Graham,  6  C.  E.  Gr.  372 


EDWARD  C.  MATTHEWS  v.  WILLIAM  ROBEBTS,  junior. 

A  former  decree  pleaded  in  bar  need  not  appear  to  have  been  between  precise- 
ly UIG  same  parties  with  tho  ono  to  which  it  is  pleaded,  but  it  must  always 
appear  to  have  been  for  the  same  subject  matter. 

If  Iho  defendant  has  a  substantial  defence  which  cannot  avail  him  under  his 
plea,  from  inaccuracy  in  pleading,  he  may  claim  the  full  benefit  of  such 
defence  by  his  answer. 

THE  bill  sought  relief  against  an  erroneous  return  made  by 
tho  sheriff  of  the  county  of  Essex,  to  an  execution  issued  out 
of  the  court  of  chancery.  The  execution  was  returned  by  tho 
sheriff,  endorsed,  "  Satisfied  without  sale."  The  bill  charged, 
that  the  return  was  mado  erroneously  and  through  mistake,  and 
that  the  execution  remained  unsatisfied ;  and  prayed  that  the 
said  return  might  be  amended  or  stricken  out,  and  that  another 
execution  might  be  issued,  to  raise  the  amount  remaining  due 
the  complainant.  To  this  bill,  Roberts,  one  of  the  defendants, 
filed  a  plea.  The  nature  of  the  defence  appears  in  the  opinion 
of  the  chancellor. 

The  defendant,  pro  se,  cited  1  Harr.  Ch.  Prac.  253  ;  1  E%. 
Ca.  Air.  39  ;  3  Attyns,  626  ;  2  John.  Chan.  E.  443 ;  1  Harr. 
Ch.  Prac.  18 ;  2  Vcrn.  691,  764 ;  1  P.  W.  496 ;  1  Vesey,  123  ; 
4  Vesey,  421 ;  Saxton,  110  :  Rev.  Laws,  269.  a.  2 ;  13  Wend. 
511 ;  Soxton,  364 ;  3  John.  Chan.  JR.  398. 

O.  S.  Hoisted,  contra. 

THE  CHANCELLOR.  A  decree  was  entered  in  this  court  on 
the  8th  of  April,  1826,  in  a  suit  wherein  David  Maxwell  and 


JULY  TERM,  1840.  333 


Matthews  v.  Roberts. 


Elias  Crane  were  complainants,  and  "William  Christie  and  others 
defendants,  for  the  sale  of  certain  mortgaged  premises,  to  satisfy, 
Urst,  George  Dixcy,  administrator  of  Abigail  Vergerean,  one 
thousand  six  hundred  and  eighty-five  dollars  and  thirty-five 
cents,  the  amount  of  two  mortgages  which  she  held,  one  made 
"by  "William  Christie,  bearing  date  the  llth  of  April,  1811,  and 
the  other  by  "William  Christie  and  wife,  bearing  date  the  ICth 
of  April,  1811,  with  costs ;  and  in  the  second  place,  to  satisfy 
the  complainants  in  that  suit  five  hundred  and  sixty-nine  dollars 
and  thirteen  cents,  the  amount  of  a  mortgage  given  by  "William 
Christie  to  the  said  complainants,  bearing  date  the  ICth  of  July, 
1823,  with  costs.  The  present  bill  charges,  that  execution  was 
issued  on  said  decree  to  the  sheriff  of  the  county  of  Essex,  who 
returned  the  same  "  satisfied  without  sale."  This  return  is  al- 
leged to  be  a  mistake  in  the  sheriff,  undesignedly  made,  and  that 
in  truth  the  debt  due  Dixey,  as  ascertained  by  that  decree,  was 
not  paid,  and  remains  still  unsatisfied.  Dixey,  on  the  31st  of 
October,  1826,  assigned  this  decree,  so  far  as  his  interest  was 
concerned,  to  "William  S.  Sears,  who,  on  the  13th  of  November, 
1835,  made  a  further  assignment  of  the  decree  to  the  complain- 
ant in  this  cause,  and  who  now  seeks  to  have  tho  mistake  in 
the  sheriffs  return  corrected,  and  to  have  execution  for  his 
money. 

To  this  bill  the  defendant  in  person  has  filed  a  plea,  and  the 
cause  is  set  down  on  the  bill  and  plea.  That  plea  alleges,  that 
before  the  present  bill  was  filed,  to  wit,  on  tho  20th  of  Novem- 
ber, 1827,  William  S.  Sears,  as  complainant,  filed  a  bill  in  this 
court  against  the  defendant  and  one  Joseph  Ogdcn,  for  the  same 
matters,  and  to  the  same  effect,  and  for  tho  like  relief  and  pnr- 
pose,  ns  the  present  complainant,  in  his  character  of  assignee  of 
Sears,  seeks  in  this  action.  That  such  proceedings  were  had  in 
that  suit,  that  tho  following  decree  was  entered  in  this  court :  -  - 

"  I>ctween  "William  S.  Scars,  complainant,  and  William  Ro- 
berts, jun.  and  Joseph  Ogden,  defendants.  Upon  reading  and 
tiling  the  petition  of  "William  Roberts,  jun.,  one  of  the  defendant* 
in  this  <5anee,  it  appearing  to  the  court  that  the  bond  and  niort 


340  CASES  IK  CHANCERY, 


Matthews  v.  Roberts. 


gage  mentioned  in  the  complainant's  bill  of  complaint,  executed 
by  the  said  "William  Roberts,  junior,  to  the  said  "William  S.  Sears, 
bearing  date  the  seventh  day  of  October,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  twenty-six,  to  secure  unto  tho 
said  "William  S.  Sears,  on  or  before  the  seventh  day  of  October, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  twenty- 
seven,  the  payment  of  the  sum  of  two  thousand  dollars,  with 
interest  thereon  at  seven  per  cent,  payable  semi-anually,  have 
been  decreed  by  the  court  of  appeals  in  the  last  resort  in  all  causes 
of  law  and  in  equity,  to  be  usurious  and  utterly  void.  It  is 
thereupon,  on  this  sixteenth  day  of  April,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  thirty-five,  ordered,  on 
motion  of  Henry  "W.  Green,  of  counsel  with  the  said  "William 
Roberts,  junior,  that  the  said  bond  and  mortgage  be  delivered 
up  to  be  canceled." 

This  suit  and  this  decree  the  defendant  pleads  in  bar  of  this 
action.  The  plea  is  clearly  defective,  and  must  be  overruled. 
"While  it  is  stated  as  a  general  allegation,  that  the  suit  pleaded 
was  for  the  same  matters  embraced  in  this  action,  yet  when  the 
decree  is  recited  it  appears  to  have  been  on  another  matter  alto- 
gether. Although  a  former  decree  pleaded  in  bar  need  not  ap- 
pear to  have  been  precisely  between  the  same  parties  with  the 
one  to  which  it  is  pleaded,  it  must  always  appear  to  have  been 
for  the  same  subject  matter. 

This  bill  seeks  to  correct  a  mistake  in  the  sheriff's  return, 
while  the  decree  stated  in  the  plea  shows  that  a  certain  bond  and 
mortgage  for  two  thousand  dollars,  made  by  Roberts  to  Sears, 
and  bearing  date  the  7th  of  October,  1826,  was  declared  usuri- 
ous and  void,  and  ordered  to  be  canceled.  The  plea  on  its  face 
shows  that  the  subject  matter  of  the  two  suits  are  not  at  all  the 
same,  and  therefore  the  one  can  be  no  bar  to  the  other.  Tho 
bond  and  mortgage  declared  void,  is  not  the  same  with  the  one 
on  which  the  decree  in  this  suit  was  entered,  either  in  date, 
amount,  or  parties.  How  then  can  any  decree  respecting  those 
instruments  be  set  up  as  a  bar  to  this  action  ?  There  is  no  aver- 
ment in  the  plea  that  the  former  decree,  or  the  bond  and  mort- 


JULY  TERM,  1840.  341 

Matthews  v.  Roberta. 

gage  on  which  the  same  is  founded,  were  ever  in  any  way 
merged  in  those  stated  in  the  plea,  or  that  they  have  any  con- 
nection with  each  other.  From  an  intimation  in  the  briefs  fur- 
nished rue,  I  should  be  led  to  suppose  that  the  bond  and  mort- 
gage set  out  in  the  plea  were  taken  as  additional  security  for  the 
same  debt  with  the  decree  set  out  in  the  bill,  still  the  one  may  be 
tainted  with  usury  and  the  other  not,  or  they  may  be  all  tainted ; 
it  will  depend  on  the  contract.  What  the  facts  are  do  not  ap- 
pear, and  therefore  that  question  cannot  now  be  decided. 

Does  this  plea  state  on  its  face  any  matter,  which  if  true, 
would  be  a  bar  to  this  action  ?  This  is  the  only  question  now  to 
be  settled.  As  the  plea  is  drawn,  it  can  have  no-such  effect.  If 
the  defendant  has  a  substantial  defence  which  cannot  avail  him 
from  the  inaccurate  manner  in  which  his  plea  is  drawn,  I  am 
relieved  by  the  consideration  that  he  may  claim  the  full  benefit 
of  it  by  answer. 

The  plea  must  be  overruled  with  costs,  and  the  defendant 
allowed  forty  days  to  answer. 
Order  accordingly. 

CITED  in,  Cummins  v.  Wir^  2  Hal.  Ch.  88. 


BENJAMIN  F.   BEOOKFIELD  and  others  v.   POLLY  WILLLLMS 

and  others. 

la  cquitv  there  is  no  necessity  that  a  partition  should  be  so  made  as  to  give 
each  party  a  share  in  every  part  of  the  property.  Each  party  must  have 
their  share  in  value,  which  is  all  that  is  required. 

To  make  the  value  of  the  several  shares  equal,  one  party  may  bo  reqiired, 
under  certain  circumstances,  to  pay  money  on  his  share  to  those  xvho  re- 
ceive a  share  of  less  value. 

An  equitable  partition  may  bo  made  so  as  to  assign  that  portion  of  th»  land 
oa  which  the  improvements  are  placed  to  tho  person  who  has  made  them. 

BILL  ior  partition,  filed  by  the  children  and  heirs  at  law  of 
Jacob  Brookfield,  deceased,  states,  that  Samuel  Wood,  deceased, 
seized  in  fee  of  fourteen  acres  of  land,  situate  in  the  town- 


342  CASES  IN  CHANCERY, 

Brookfield  et  al.  v.  Williams  et  el. 

ship  of  Railway,  in  the  county  of  Essex,  by  his  last  will  and 
testament,  dated  February  1st,  1T92,  devised  the  same  to  his 
daughter  Phebe,  the  wife  of  James  Kinsey,  during  her  natural 
life,  and  after  her  decease  unto  and  among  her  surviving  chil- 
dren ;  and  after  making  the  said  will,  and  long  before  the  28th 
of  November,  1811,  the  said  Samuel  "Wood  died,  and  the  said 
James  Kinsey  thereupon  entered  into  the  possession  of  the  de- 
vised premises.  On  the  28th  of  November,  1811,  James  Kin- 
sey and  Phebe  his  wife,  and  Samuel  Kinsey  one  of  their  sons, 
mortgaged  the  said  fourteen  acres  to  David  Ludlow,  to  secure 
the  payment  of  a  bond  given  by  the  said  Samuel  Kinsey  to  the 
said  David  Ludlow,  conditioned  for  the  payment  of  two  hundred 
and  fifty  dollars,  with  interest ;  which  bond  and  mortgage,  in 
November,  1816,  passed  by  assignment  to  the  said  Jacob  Brook- 
field  in  his  life  time,  and  still  remains  unpaid.  Jacob  Brookfield 
died  1837,  possessed  of  the  said  bond  and  mortgage.  Phebe 
Kinsey  also  died  in  1837,  having  survived  her  husband,  James 
Kiusey,  and  had  having  eight  children,  all  of  whom  survived 
the  testator,  Samuel  Wood.  The  said  Jacob  Brookfield  in  his 
life  time  became  seized  by  purchase  of  the  shares  of  five  of  the 
children  of  the  said  Phebe  Kinsey,  including  the  share  of  Sam- 
uel, which  was  covered  by  the  above  mentioned  mortgage ; 
which  shares,  on  his  death,  descended  to  the  complainants,  his 
children  and  heirs  at  law.  He  took  possession  of  the  whole  of 
the  said  fourteen  acres  many  years  before  his  death,  by  virtue  of 
his  mortgage  above  mentioned,  and  continued  ia  possession  at 
the  time  of  his  death.  At  the  time  he  entered  into  possession  it 
was  not  the  interest  of  the  said  Phebe  to  redeem  the  mortgage, 
the  amount  due  thereon  exceeding  the  value  of  her  life  estate ; 
and  the  annual  value  of  the  said  land,  in  the  condition  it  then 
was,  from  the  time  he  took  possession  until  his  death,  was  in- 
sufficient to  satisfy  the  mortgage.  At  the  time  Brookfield  took 
possession,  there  was  an  old  and  ruinous  dwelling-house  and 
barn  on  the  premises,  not  in  tenantable  condition,  and  not  worth 
repairing  ;  the  fences  were  old,  and  the  land  poor  and  unculti- 
vated. Brookfield  repaired  the  fences,  manured  and  improved 


JULY  TEEM,  1840.  343 


Brookfield  et  al.  y.  'Williams  et  al. 


the  land,  and  erected  a  new  dwelling  thereon  at  a  cost  of  two 
thousand  five  hundred  dollars,  and  other  buildings  at  considera- 
ble expense  ;  all  which  are  yet  nearly  new,  and  in  good  condi- 
tion. The  bill  prays  a  reference  to  a  master  to  ascertain  the  es- 
tate and  interest  of  the  complainants  in  the  said  land,  the  in- 
creased value  thereof  by  f encing,  manuring  and  cultivation ;  tho 
estate  and  interest  of  the  defendants,  and  a  decree  for  partition 
between  the  complainants  and  defendants,  saving  to  the  com- 
plainants the  buildings  and  improvements,  and  allowing  for  tha 
increased  value  of  the  lands  by  fencing,  manuring  and  cultiva- 
tion ;  that  a  commission  inuy  issue  and  commissioners  be  ap- 
pointed to  make  partition  ;  that  all  proper  parties  may  join  in 
conveyances  agreeably  to  the  partition,  and  that  the  parties  in- 
terested may  be  decreed  to  pay  the  costs  arising  in  the  cau3D  o 
proportion  to  their  respective  interests. 

The  answer  of  "William  Williams  and  Polly  his  wife,  and 
Susan  "Wiley,  (the  said  Polly  and  Susan  being  two  of  tlio  cliil- 
dren  and  heirs  at  law  of  James  Kinsey,  deceased,)  admits  tho 
title  of  tho  complainants  to  a  part  of  the  premises,  and  thoir 
right  to  partition,  and  assents  to  a  decree  for  partition  in  cuch 
way  as  to  secure  to  them  their  rightful  interest  in  the  said  lanua 
and  buildings,  and  in  the  rents  and  profits  thereof ;  but  insists 
that  the  said  Polly  and  Susan  are  entitled  each  to  one  equal 
sixth  part  of  the  said  premises ;  that  Jacob  Lrookficld  obtained 
possession  of  the  land  under  the  right  and  estate  of  tho  tenant 
for  life  ;  and  that  the  improvements  made  by  him  on  tho  snid 
premises,  being  made  during  the  continuance  of  the  said  life 
estate,  are  subject  to  the  same  rules,  and  that  the  defenchnls 
have  the  same  interest  in  them,  as  if  they  had  been  made  by  the 
tenant  for  life  during  the  continuance  of  the  life  estate. 

The  cause  was  set  down  for  hearing  upon  the  bill  and  an- 
swer. 

£  'Sciiddcr,  for  complainants. 
0.  S.  Hoisted,  for  defendants. 


CASES  IN  CHANCERY, 


I          ^.       <  *  -   Brookfit-ld  et  al.  v  Williams  et  al. 


THE  CHANCELLOR.  •-  The  complainants,  as  heirs  at  law  of 
Jacob  Brookfield,  deceased,  by  their  bill  ask  the  aid  of  this  court 
for  a  partition  of  certain  lands  between  them  and  the  defendants. 
There  is  no  objection  made  to  a  partition  ;  in  fact,  the  defendants 
by  their  answer  do  not  deny  the  complainants'  title  to  a  share  in 
the  lands,  and  are  desirous  that  a  partition  should  take  place, 
but  the  difficulty  arises  as  to  the  manner  in  which  the  same 
shall  be  made.  The  complainants  insist  that  a  division  should  be 
BO  made  as  to  allow  them  the  benefit  of  certain  improvements 
placed  by  their  ancestor  on  the  lands,  while  the  defendants  claim 
an  equal  division  according  to  their  shares  as  well  in  the  lands 
as  in  the  improvements  on  the  same.  Tin's  is  the  question,  and 
tho  only  one  now  to  be  settled. 

The  lands  consist  of  fourteen  acres,  situate  at  Rah  way,  in  the 
county  of  Essex.  They  were  devised  by  Samuel  Wood,  the 
former  owner,  by  his  last  will  and  testament,  to  his  daughter, 
the  wife  of  James  Kinsey,  during  her  natural  life,  and  after  her 
death  to  be  divided  among  such  of  her  children  as  might  be  liv- 
ing at  the  time  of  her  death.  .  Samuel  Wood  died,  and  his 
daughter  and  her  husband  Kinsey  went  into  possession  of  the 
lands,  and  with  one  of  their  sons  executed  a  mortgage  on  tho 
same,  which  came  into  the  hands  of  Jacob  Brookfield  by  assign- 
ment, and  under  which,  for  non-payment  of  the  monies  intend- 
ed to  be  secured  thereby,  he  entered  into  possession  of  tho  pre- 
mises. Kinsey,  the  husband,  died  many  years  ago,  and  his 
wife  in  the  year  1837,  having  had  during  their  marriage  eight 
children,  seven  beside  the  one  who  joined  in  the  mortgage.  Two 
of  these  children  died  before  their  mother,  as  is  believed,  leav- 
ing the  property  to  be  divided  among  the  remaining  six,  or 
among  those  who  represented  their  interests.  Four  of  theso 
shares  were  purchased  by  Jacob  Brookfield,  and  descended  to 
his  heirs  at  law,  the  complainants  ;  and  the  remaining  two  shares 
belong  to  two  daughters  of  Mrs.  Kinsey,  who  are  the  defendants. 
This,  from  the  pleadings,  would  seem  to  be  the  situation  of  the 
parlies  and  their  interests. 

After  Jacob  Brookfield  had  so  entered  into  possession  of  tho 


JULY  TERM,  1840.  345 


BrookfieU  et  al.  v.  Williams  ct  al. 


premises  under  Lis  mortgage,  and  had  purchased  the  shares  of 
the  children  as  before  stated,  he  built  a  new  house  and  out- 
buildings on  the  premises,  at  a  cost  of  two  thousand  five  hun- 
dred dollars,  and  greatly  improved  the  lot  by  cultivation  and  by 
making  new  fences.  There  was  an  old  house  and  bam  on  tho 
place,  which  he  pulled  down,  as  they  had  gone  to  decay  and 
were  much  out  of  repair.  There  would  seem  to  be  no  doubt 
that  Crookficld  made  his  improvements  with  the  honest  purpose 
of  increasing  the  value  of  the  property  and  rendering  it  more 
productive,  and  so  far  as  appears  they  were  made  without  any 
opposition  or  objection  from  any  quarter.  His  rights  were  ac- 
quired in  good  faith  and  upon  a"  fair  and  full  value. 

Whatever  the  strict  rule  may  be  at  law,  in  this  court  it  is 
quite  certain  there  is  no  necessity  that  a  partition  should  be 
made  so  as  to  give  each  party  a  share  in  every  part  of  the  proper- 
ty. If  there  be  a  house  and  land  sufficient  to  give  the  house  to  one 
and  the  land  to  another,  it  may  be  so  made.  It  is  no  object  so  to 
set  oil  the  shares  as  to  lessen  the  value  of  any  part.  If  there  be 
but  a  single  house,  and  nothing  out  of  which  the  shares  of  the 
others  can  be  had,  then  the  house  must  be  divided,  but  otherwise 
not.  Each  party  must  have  their  share  in  value,  which  is  all  that 
is  required.  So  also,  to  make  the  value  equal,one  party  maybe 
required,  under  certain  circumstances,  to  pay  money  on  his 
share  to  those  who  receive  one  of  less  value  :  Earl  of  Claren- 
don and  others  v.  JTorsley,!.  P.  Wins.  447.  The  principle 
that  an  equitable  partition  may  be  made,  BO  as  to  assign  that 
portion  of  the  lands  on  which  the  improvements  are  placed  to 
the  person  who  has  made  them,  is  fully  recognized  in  the  case 
of  Town  v.  Needham,  3  Paige's  Chan.  Rep.  553.  Tho  chan- 
cellor in  that  case  says,  "  If,  therefore,  this  court  should  arrive 
at  the  conclusion,  that  Harney  was  entitled  to  recover  one  fourth 
of  the  property,  there  should  be  a  decree  for  an  equitable  par- 
tition, so  that  tho  complainant  may  have  assigned  to  him  that 
part  of  the  premises  on  which  the  buildings  have  been  erected."- 
Judge  Story,  in  his  treatise  on  Equity,  2  vol.,  second  edition, 
610,  speaking  on  this  subject,  says,  "  A  court  of  equity  does  no 
45  • 


346  CASES  IN  CHANCERY, 


Brookfiel.l  et  al.  v.  Williams  et  al. 


act  merely  in  a  ministerial  character,  and  in  obedience  to  the 
call  of  the  parties  who  have  a  right  to  the  partition ;  but  it  founds 
itself  upon  its  general  jurisdiction  as  a  court  of  equity,  and  ad- 
ministers its  relief,  ex  acquo  et  bono,  according  to  its  own  no- 
tions of  general  justice  and  equity  between  the  parties." 
<  I  cannot  view  the  case  before  me  (as  contended  by  the  de- 
fendants' counsel)  as  similar  in  principle  to  the  case  of  improve- 
ments placed  on  lands  by  a  tenant  for  life,  and  then  seeking  re- 
muneration at  the  hands  of  the  remainder  man.  In  this  way 
the  estate  in  remainder  might  be  encumbered  so  as  possibly  to 
defeat  it  altogether ;  for  the  improvements  made  might  exceed 
the  value  of  the  estate  or  the  ability  of  the  party  to  pay  them. 
These  complainants  ask  no  remuneration  for  their  improve- 
•  ments  at  the  hands  of  the  defendants ;  but  only  that  the  part  of 
the  lands  on  which  the  house  and  buildings  stand  may  be  assigned 
to  them  as  their  share.  This  works  no  injustice  to  the  defend- 
ants ;  whereas  a  contrary  rule  would  greatly  enhance  the  value 
of  their  shares  to  the  injury  of  the  complainants.  It  must  l>e 
remarked,  too,  that  when  these  buildings  were  erected,  Brook- 
field  had  more  than  the  life  estate ;  he  was  the  owner  of  the 
greater  part  of  the  shares  of  those  in  remainder. 

I  have  found  no  case  where  this  question  has  been  discussed 
and  settled  fully,  nor  have  counsel  been  able  to  furnish  me  with 
any.  The  justice  of  the  case,  however,  strikes  me  as  plain, 
(and  that  is  mainly  to  be  looked  at,)  that  the  complainants  shoull 
be  allowed  their  share  in  the  land  on  which  the  buildings  erected 
by  their  ancestor  are  located.  If  the  land  on  which  they  stand 
be  more  than  their  share,  they  must  make  recompense  in  mo- 
ney ;  but  if  the  remaining  lands  are  sufficient  to  give  the  de- 
fendants their  share  in  value,  it  must  be  given  out  of  them. 

If  I  am  right  in  the  conclusion  to  which  I  have  come,  that 
the  complainants  are  entitled  to  the  present  buildings,  it  is  clear 
that  the  defendants  are  entitled  to  their  share  in  the  value  of  the 
old  buildings  which  were  pulled  down,  and  as  I  think,  at  the 
time  they  were  pulled  down.  They  are  also  entitled  to  their 
share  in  the  rents  and  profits  from  the  death  of  their  mother, 


JULY  TEEM,  1840.  347 


Brookfield  et  si.  v.  Williams  et  al. 


when  their  rights  accrued.  For  the  fencing  and  cultivation,  as 
it  properly  belonged  to  the  party  in  possession  having  the  life  es- 
tate to  keep  them  up,  I  shall  make  no  allowance  for  them. 

Before  directing  a  commission  to  make  partition,  it  will  be  ne- 
cessary to  have  a  reference  to  a  master.  I  shall,  therefore,  for 
the  present,  send  the  case  to  a  master,  to  ascertain  what  are  the 
estates  and  interests  of  the  complainants  and  defendants,  re- 
spectively, in  the  land  in  question ;  what  buildings  were  put  on 
the  place  by  the  complainants'  ancestor ;  what  was  the  value  of 
the  buildings  pulled  down  and  destroyed  by  him  at  the  time  they 
were  so  destroyed,  and  the  amount  of  the  rents  and  profits  from 
the  death  of  Mrs.  Kinsey  ;  and  also,  whether  the  property  is  so 
circumstanced  that  a  division  can  be  made  by  assigning  the  land 
on  which  the  buildings  are  situated  to  the  complainants,  and  leave 
sufficient  to  give  the  defendants  their  shares  in  value  out  of  the 
residue.  All  other  questions  are  reserved. 
Order  accordingly. 

CITED  in  Olert  v.  Olert,  1  Hal.  Ch.  408;  Hall  v.  Piddack,  6  0  E.  Gr. 
814;  Polhemtuv.  Empson,  12  C.  E.  Gr.  105. 


JAMES  BEDEN  Y.  LEMCEL  M.  CRANE  and  others. 

"NYhcre  the  assignment  of  a  judgment  constituting  a  Hen  on  mortgaged  pre- 
mises is  absolute  and  unconditional,  the  assignor  is  not  a  necessary  parly 
to  a  bill  for  foreclosure. 

The  multiplication  of  parties  should  bo  avoided  whenever  they  Lave  nc  in- 
terest at  stake  in  the  cause. 

BILL  for  foreclosure.  The  bill  charges,  that  one  William 
Green  had  recovered  a  judgment  in  the  circuit  court  of  the 
county  of  Essex,  which  remained  a  lien  on  the  mortgaged  pre- 
mises, and  that  the  said  judgment  had  been  assigned  to  one 
Daniel  Price.  The  assignee  of  the  judgment  was  made  a  party 
to  the  suit,  butthe  assignor  was  not.  A  demurrer  was  filed  to 
the  bill  on  behalf  of  Lemuel  M.  Crane  and  others,  defendants, 
assigning  for  cause  of  demurrer,  that  "\Villiam  Green,  the  as- 


348  CASES  IKT  CHANCERY, 


Bruen  v.  Crane  et  al. 


signor  of  the  judgment,  was  not  made  a  party.    The  cause  was 
heard  upon  the  demurrer. 

W.  M.  Svudder,  in  support  of  the  demurrer,  insisted,  that 
the  assignor  as  well  as  the  assignee  of  a  judgment  must  be  made 
a  party,  for  the  legal  right  of  action  remains  in  the  assignor ; 
the  equitable  interest  only  is  transferred  to  the  assignee.  He 
cited  Mitfortfs  PL  ly  Jeremy,  179  ;  1  Vesey,jr.  463  ;  Ca&vert 
on  Parties,  240 ;  Edwards  on  Parties,  175. 

0.  S.  Halsted,  contra. 

THE  CHANCELLOE.  The  assignor  of  a  judgment  assigned 
is  a  proper  party,  but  not  an  indispensable  one.  I  am  aware  that 
the  cases  cited  in  support  of  the  demurrer,  do  indeed  require  the 
assignor  to  be  made  a  party  in  all  cases,  but  the  whole  subject 
will  be  found  reviewed  in  Story's  Equity  Pleading,  149,  and 
the  above  distinction  taken.  Where  the  assignment  is  absolute 
and  unconditional,  there  is  no  reason  for  making  the  assignor  a 
party.  It  has  been  decided  in  this  court*  that  a  mortgagor,  who 
has  parted  with  the  equity  of  redemption,  is  not  a  necessary  par- 
ty ;  and  I  can  see  no  stronger  reason  for  making  the  assignor  of 
a  judgment  a  party,  than  the  mortgagor  who  has  parted  with  all 
his  interests  in  the  lands.  The  multipication  of  parties  should  be 
avoided  whenever  they  have  no  interest  at  stake  in  the  cause  ;  it 
can  only  tend  to  create  expense  and  embarrassment. 

The  demurrer  must  be  overruled,  with  costs. 

•  Yreeland  v.  Loubat,  ante,  page  104. 


CASES 

AI\TTTDOEI>  ZH 

THE  COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW- JERSEY. 
OCTOBER    TEEM,     1840. 


ANN  HARTSHORNE  v.  WILLIAM  HABTSHORNE. 


It  is  Bottled  at  thu  diy,  that  the  courts  of  Jaw  and  equity  hold  a  cone  rrent 
jurisdiction  in  relation  to  dower  and  partition  ;  and  i  i  many  cases  there  ia 
an  indispensable  necessity  for  the  exercise  of  this  jurisdiction  by  a  court  of 
equ  ty.  If  the  1  'gal  title  of  the  complainant  be  denied,  it  is  in  the  power  of 
the  cou:  t  to  send  that  question  to  be  Uriel  at  law,  and  such  is  the  universal 
practice. 

A  purchaser  of  the  equity  of  redemption  at  a  sheriff's  sole,  takes  the  property 
cum  onere,  and  acquires  no  rights  beyond  what  remain  in  the  mortgagor 
after  satisfying  the  incumbrance  out  of  the  land. 

The  purchaser  of  the  equity  of  redemption  will  in  no  event  be  permitted  to 
hold  the  land  discharged  of  the  incumbrance  ;  and  if  he  attempt  to  make 
the  debt  by  buying  up  the  bond  and  mortgage,  and  recovering  the  amount 
unjustly  out  of  the  obligor,  tho  debt  will  in  his  hands  be  considered  extin- 
guished. 

It  seems  that  the  purchaser  of  the  equity  of  redemption  is  liable  to  the  extent 
of  the  laud  purchased,  and  no  further,  and  that  he  will  at  all  times  be  dis- 
charged upon  releasing  the  land. 

If  the  husband  before  marriage,  or  in  conjunction  with  tie  wife  after  mar- 
riage, execute  a  mortgage,  the  widow  can  only  hare  her  dower  subject  to 
such  mortgage  ;  and  if  the  mortgage  be  foreclosed  and  a  sale  made,  the 
widow's  rights  are  barred  except  as  to  the  surplus  after  s&t  sfying  the  mort- 
gage. 


S50  CASES  IN  CHANCERY, 


Hartshorne  v.  Haitshorne. 


If  the  purchaser  of  the  equity  of  redemption  take  an  assignment  of  the  mort- 
gage; the  debt  is  not  thereby  merged  or  extinguished,  and  the  w.dow  is  en- 
titled to  her  dower  in  the  equity  of  redemption  only,  subject  to  the  mort- 
gage. 

THE  bill  states  that  the  complainant  is  the  widow  of  Richard 
S.  Hartshorne,  late  of  the  township  of  Freehold,  in  the  county 
of  Monmouth,  deceased.  That  the  said  Richard  S.  Hartshorno 
in  his  life  time,  and  during  the  complainant's  coverture,  was 
seized  in  fee  of  divers  messuages,  lands  and  tenements,  in  tho 
said  bill  of  complaint  particularly  described.  That  the  marriage 
of  the  complainant  with -the  said  Richard  S.  Hartshorne  was 
duly  solemnized  on  the  3d  of  August,  1820,  and  that  they  lived 
together  as  man  and  wife  until  the  death  of  the  said  Richard, 
which  occurred  in  the  month  of  October,  1833.  That  on  tho 
25th  of  April,  1827,  judgment  was  recovered  in  the  inferior 
court  of  common  pleas  of  the  county  of  Monmouth,  against  the 
said  Richard  S.  Hartshorne,  upon  which  judgment  execution 
was  issued  j  and  that  by  virtue  of  the  said  execution  certain  real 
estate  of  the  said  Richard  was  sold,  on  the  5th  of  January, 
1828,  subject  to  all  legal  and  prior  incumbrances,  for  the  sum 
of  two  dollars,  to  William  Hartshorne  and  Esek  Hartshorne, 
two  of  the  children  of  the  said  Richard  S.  Hartshorne.  That 
the  said  Richard  S.  Hartshorne,  prior  to  hia  marriage  with  the 
complainant,  and  on  or  about  the  3d  of  June,  1808,  executed  to 
one  Edmund  "Williams  a  mortgage  upon  the  premises  sold  by 
virtue  of  the  said  execution,  to  secure  the  payment  of  three 
thousand  dollars,  which  at  tho  time  of  the  said  sale  had  been 
paid  to  the  said  Edmund  Williams  excepting  about  eleven  hun- 
dred dollars,  which  remained  a  lien  and  incumbrance  upon  said 
premises ;  and  that  the  said  mortgage  has  been  assigned  by  the 
said  Edmund  Williams  to  the  said  William  Ilartshorne,  one  of 
the  purchasers  at  the  sheriffs  sale.  That  on  the  12th  of  April, 
1824,  the  said  Richard  S.  Ilartshorne  and  his  wife,  the  com- 
plainant, executed  a  mortgage  on  said  premises  to  Jacob  Quack- 
cnbush,  to  secure  the  payment  of  two  thousand  two  hundred 
dollars,  which  at  the  time  of  the  said  sheriffs  sale  was  reduced 


OCTOBER  TERM,  1840.  351 


Ilartsliorne  v.  Hartshorne. 


by  payments  to  about  one  thousand  six  hundred  dollars.  That 
the  said  lust  mentioned  mortgage  has  been  assigned  to  one  John 
"W.  Holmes,  and  is  paid  and  satisfied  excepting  about  six  hun- 
dred dollars,  which  still  remains  due  thereon.  The  bill  further 
states,  that  other  mortgages  upon  the  said  premises  were  exe- 
cuted by  the  said  Richard  S.  Ilartshorne  in  his  life  time,  which 
have  been  paid  and  satisfied.  That  on  the  2d  of  May,  1835, 
the  said  Esek  Ilartshorne  and  William  Hartshorne  sold  and 
conveyed  a  part  of  the  said  premises  by  them  purchased  at 
the  sheriffs  sale,  to  Daniel  Baker ;  and  on  the  24th  of 
December,  1835,  the  said  Esek  Hartshorne  sold  and  conveyed  his 
undivided  half  part  of  the  residue  of  said  premises  to  the  eaid 
William  Hartshorne.  That  from  the  death  of  the  complainant's 
husband  she  has  held  and  en  joyed  the  mansion  house,  and  refused 
to  deli ver  up  the  possession  thereof,  and  has  also  refused  to  re- 
lease her  dower  in  the  said  premises,  but  has  requested  the  samo 
to  be  set  off  to  her.  That  no  settlement  or  provision  in  lieu  of 
dower  having  been  made  for  the  benefit  of  the  complainant  upon 
or  before  her  marriage  with  the  said  Richard  S.  Hartshorne,  sho 
became  entitled  upon  his  death  to  dower  in  all  the  lands  of  which 
he  was  seized  in  fee  at  any  time  during  the  coverture,  and  par- 
ticularly in  the  lands  owned  and  occupied  by  the  said  "William 
Hartshorne.  That  nothing  has  been  paid  her  in  satisfaction  or 
in  lieu  of  her  dower.  The  bill  prays  that  the  complainant  may 
be  decreed  to  be  entitled  to  her  dower  in  the  said  premises  and 
also  to  one-third  of  the  rents,  issues  and  profits  thereof,  accruing 
since  the  death  of  her  husband  or  her  demand  of  dower ;  and 
that  an  account  may  be  taken  of  what  is  due  to  her  in  that  be- 
half, and  that  the  said  William  Hartshorne  may  bo  decreed  to 
pay  the  same.  That  she  may  be  let  into  possession  and  receipt 
of  the  said  rents  and  profits,  and  decreed  to  be  entitled  to  hold 
and  enjoy  the  same  for  life,  and  if  necessary  that  a  commission 
may  issue  for  the  purpose  of  assigning  and  setting  out  such 
dower. 

To  this  bill  the  defendant  demurred  for  want  of  equity,  and 
also  for  want  of  proper  parties  ;  assigning  for  cause  of  demurrer 


352  CASES  IX  CHANCERY, 


Hartshorne  v.  Hartshorn 


that  it  appeared  by  the  said  bill  that  a  mortgage  upon  the  said 
premises  was  given  by  the  said  Richard  S.  Hartshorne  in  his 
life  time  to  Jacob  Quackenbush,  and  by  him  assigned  to  John 
W.  Holmes,  which  still  remained  unsatisfied  ;  and  also  that  a 
part  of  the  premises  had  been  conveyed  in  fee  to  Daniel  Baker  ; 
yet  neither  the  said  Jacob  Quackenbush,  John  W.  Holmes,  nor 
Daniel  Baker  are  made  parties. 

The  cause  came  on  for  hearing  upon  the  demurrer  to  the 
bill. 

P.  Vredenburg,  in  support  of  the  demurrer,  insisted, 

1.  That  Daniel  Baker,  a  purchaser  of  part  of  the  premises 
sold  by  the  sheriff  to  William  and  Esek  Hartshorne,  and  John 
"W.  Holmes,  the  assignee  of  a  mortgage  executed  by  Richard  S. 
Hartshorne,  the  husband  of  the  complainant,  before  her  mar- 
riage, are  necessary  parties  to  the  bill.  , 

2.  That  chancery  has  no  jurisdiction  in  matters  of  dower. 

3.  That  the  complainant,  upon  the  case  disclosed  in  the  bill, 
ia  not  entitled  to  dower.     The  defendant  is  a  mortgagee  in  pos- 
session, and  entitled  to  hold  the  premises  free  of  dower :  Wood- 
hull  v.  Re&oes,  1  Harr.  128  ;  4  Kent's  Com.  71 ;  Harrison  v. 
Eldredge,  2  Hoisted,  401 ;  2  Browrts  Chan.  630. 

Wilson,  for  complainant,  contra. 

No  dower  is  claimed  in  that  part  of  the  premises  conveyed  to 
Baker :  he  is  not,  therefore,  a  proper  party  to  the  bill.  Holmes, 
the  mortgagee,  is  not  affected  in  any  way  by  a  decree  for  dower, 
and  is  not,  therefore,  a  proper  party :  2  Maddoctts  Chan.  184 ; 
3  P.  W.  310. 

Chancery  has  concurrent  jurisdiction  with  the  courts  of  com- 
mon law  in  cases  of  dower:  2  Sellon's  Prac.  204;  Rev.  Laws, 
399  ;  1  MaddocWs  Chan.  242 ;  2  Vesey,  jr.  127-8 ;  4  Kenfa 
Com,.  73;  4  John.  Chan.  R.  604;  5  Hid,  482;  7  Cranch, 
371. 

The  widow  is  entitled  to  dower  in  the  equity  of  redemption,  on 
paying  one-third  of  the  mortgage  debt,or  keeping  down  one-third 


OCTOBER  TERM,  L840.  353 


Ilartshorne  v.  Hurtsborne. 


of  the  interest  thereon :  2  Grecnleaf,  41 ;  5  Pickering,  146 ; 

1  Conn.  559;   12  Serg.   and  It.   181;   1  Randolph,  344;   6 
J.  It.  290 ;  7  J.  It.  281 ;   15  J.  R.   319 ;  1  Swans.  478 ;   2 
£tf<ww.  248;  2  POM>.  on  Mort.  300,  700;  3  Hid,  1089,  rc.  1 ; 
(J  Cowcn,  316 ;  14  Wend.  233 ;  1  Pa^?,  193 ;  1  John.  Cltan. 
R.  45  ;  5  Hid,  452,  491 ;    1  Southard,  260 ;    2  7fo'd,  865  ; 

2  e/0A/i.  Cttan.  7?.  125. 

/.  //.  Williamson,  for  complainant. 

Tho  complainant  does  not  claim  dower  in  the  land  owned  by 
Baker.  She  cannot  file  the  bill  against  the  owners  in  severalty  of 
all  the  lands  in  which  she  claims  dower,  but  must  proceed  against, 
each  owner  separately.  Baker  is  not  a  proper  party  to  this  bill ; . 
he  has  no  interest  that  can  be  affected  by  it.  Nor  is  Holmes  a 
proper  party.  No  decision  in  this  suit  can  affect  the  mortjagee. 

This  court  has  jurisdiction  of  the  subject  matter  of  the  suit.. 
In  cases  of  partition  and  dower,  courts  of  law  and  equity  have 
concurrent  jurisdiction.  Where  a  widow  claims  dower  in  an 
equity  of  redemption,  there  arc  special  reasons  for  coming  into 
a  court  of  equity. 

In  England  dower  is  strictly  a  legal  right,  and  the  widow  is 
not  entitled  to  dower  in  a  trust  estate,  or  in  an  equity  of  redemp- 
tion ;  1  Fonb.  20  ;  1  Blacks.  R.  123. 

In  nearly  all  the  states  of  the  American  union,  a  widow  is 
entitled  to  dower  in  an  equity  of  redemption.  Eyen  in  England 
at  this  day  the  court  of  chancery  exercises  concurrent  jurisdic- 
tion with  the  courts  of  law  in  cases  of  dower:  2  Vesey,jr.  122  ;.• 
MUfortfs  Plead.  109,  110,  112;  1  Eland's  Ch.  Rep.  206 .;; 
5  John  Chan.  R.  486  :  7  Cranch,  370,  376. 

And  there  is  no  necessity  to  allege  in  the  bill  of  complaint  any- 
special  reason  for  coming  into  equity  to  recover  dower:  4  Brown?*. 
Clian.  Cos.  294. 

In  the  present  case  there  are  impediments  in  the  way  of  pro 

ceeding  at  law,  which  render  it  necessary  for  the  party  to  come  into 

a  court  of  equity.     There  is  an  outstanding  mortgage,  which  in 

a  court  of  law  might  have  been  set  up  to  defeat  the  recovery  of 

46 


354  CASES  IK  CHANCERY, 


Hartshorne  v.  Hartshorne. 


dower.  The  complainant,  moreover,  seeks  important  discoveries ; 
she  could  not  proceed  without  the  aid  of  a  court  of  equity. 

Where  the  mortgagee  has  never  entered  into  possession  or 
foreclosed  the  equity  of  redemption,  the  widow  has  her  dower : 
C  J.  It.  290  ;  7  Ibid,  273 ;  15  Ibid,  319 ;  4  Kent's  Com.  42-34; 

5  John.  Chan.  R.  452. 

In  England  an  equity  of  redemption  cannot  be  sold  on  execu- 
tion :  in  New-Jersey  it  may.  By  the  act  of  the  legislature 
(Rev.  Laws,  431)  the  sheriff  is  required  to  sell  all  the  lands 
whereof  the  defendant  is  seized.  Under  this  statute  the  equity 
of  redemption  is  constantly  sold.  The  mortgagor,  in  New- Jer- 
sey, is  seized  of  the  equity  of  redemption. 

The  wife  joining  in  the  mortgage  is  only  as  security  for  the 
debt,  and  the  personal  representatives  may  be  called  upon  to  pay 
off  the  debt  and  relieve  the  estate :  Harrison  v.  Eldridge,  2 
Jlalsted,  392 ;  1  Blond's  R.  228 ;  2  Pow.  on  Nort.  678. 

The  purchaser  of  the  equity  of  redemption  is  bound  to  pay 
oil  the  incumbrances.  It  is  a  fraud  on  his  part  to  attempt  to  set 
up  the  mortgage  as  a  bar  to  the  widow's  dower :  2  South,  865. 

The  equity  of  redemption  is  all  that  was  sold  by  the  sheriff, 
and  all  that  the  defendant  acquired  by  the  purchase :  10  J.  R. 
431 ;  2  IMsted,  392  ;  5  John.  Chan,  R.  452. 

If  a  man  purchase  the  equity  of  redemption,  a  court  of  equity 
Trill  raise  an  implied  promise  to  pay  the  debts  on  the  property : 
1  Vesey,  337 ;  3  John.  Chan.  R.  259 ;  2  lUd,  125. 

lie  is  only  liable  to  the  extent  of  the  land ;  nothing  more  is 
pretended :  5  John.  Chan.  R.  481. 

The  mortgage  which  the  defendant  took  by  assignment  was 
Ills  debt  to  pay,  and  became  merged  in  his  legal  title.  A  court 
of  equity  will  allow  an  incumbrance  to  be  kept  alive  for  an  hon- 
est purpose ;  but  it  will  consider  an  incumbrance  paid  off  or  not, 
as  will  most  advance  the  justice  of  the  case :  1  Harrison,  128; 

6  J.  R.  395 ;  1  Cowen,  460,  478. 

Vredenburg,  in  reply,  insisted  that  the  defendant  is  a  mort- 
gagee in  possession,  against  whom  the  widow  is  not  entitled  to 


OCTOBER  TERM,  1840.  355 


Hartsliorne  v.  Hartshorn'?. 


dower.  The  fact  of  his  having  purchasad  tho  equity  of  re- 
demption, cannot  affect  his  rights  under  the  mortgage.  The 
complainant  can  acquire  no  right  by  coming  into  equity,  to 
•which  she  was  not  entitled  at  law. 

THE  CHANCELLOR.  This  is  a  bill  for  dower.  The  com- 
plainant alleges,  that  her  husband  was  seized  in  fee  of  certain 
lands  in  the  county  of  Monmouth,  during  their  coverture,  of 
•which  she  claims  to  have  set  off  one-third  part  for  her  dower.  It 
is  stated  in  the  bill,  that  prior  to  the  marriage,  her  husband  gave 
a  mortgage  on  the  property  whereof  dower  is  claimed,  for  three 
thousand  dollars,  on  which  payments  had  been  made  reducing 
it  to  eleven  hundred  dollars,  and  that  such  mortgage  has  been 
assigned  to  the  defendant.  The  defendant  purchased  the  equity 
of  redemption  at  sheriff's  sale,  and  afterwards  procured  the  as- 
signment of  the  aforesaid  mortgage.  The  bill  further  states,  that 
daring  the  marriage,  the  complainant  and  her  husband  also  ex- 
ecuted a  mortgage  on  the  property  for  two  thousand  two  hundred 
dollars,  which  has  been  reduced  by  payments  to  six  hundred  dol- 
lars, and  is  held  by  John  W.  Holmes.  Other  mortgages  are  set 
out  in  the  bill,  but  as  they  are  said  to  bo  paid  off  anU  discharged 
it  is  not  material  to  state  them  here.  To  this  bill  there  is  a  de- 
murrer for  want  of  equity  and  for  want  of  parties,  which  presents 
some  questions  important  to  be  settled. 

In  the  first  place,  it  is  insisted  that  this  court  has  no  jurisdic- 
tion in  dower,  and  that  in  New-Jersey  the  remedy  is  exclusively 
in  the  common  law  courts.  Whatever  difference  of  opinion  on 
this  subject  might  at  one  time  have  existed,  I  consider  it  settled 
at  this  day,  that  in  relation  to  both  dower  and  partition  the  courts 
of  law  and  equity  hold  a  concurrent  jurisdiction.  I  had  occasion 
recently  to  examine  a  case  of  partition,  and  became  satisfied  not 
only  of  the  authority  of  this  court  over  it,  but  of  the  indispensa- 
ble necessity  for  its  exercise.  There  are  cases,  and  tho  one  be- 
fore me  was  of  that  character,  in  which  tho  parties  could  nol 
have  had  tho  proper  relief  at  law.  So  in  dower,  in  favor  of  the 
widow,  it  is  indispensable  in  many  cases  for  the  sake  of  discove- 


356  CASES  DT  CHAKCEHY, 


Hurtshorno  v.  Hartslaorne. 


ry  by  tlic  oalli  of  the  defendant  as  to  the  property,  its  nature,  and 
the  iucumbrances  upon  it,  and  sometimes  for  an  account  of  the 
rents  and  profits,  that  the  jurisdiction  of  this  court  should  bo 
maintained.  If  the  legal  title  be  denied,  it  is  always  in  the  pow- 
er of  the  court  to  send  that  question  to  be  tried  at  law,  and  such 
ia  the  universal  practice.  This  subject  has  been  much  discussed, 
but  it  should  now  be  considered  as  settled  in  favor  of  the  jurisdic- 
tion, both  in  England  and  in  this  country :  Mundy  v.  Mundy, 
2  Vcsey,  jr.  128  ;  Curtis  v.  Curtis,  2  Brown's  Oh.  Cas.  623  ; 
1  MaddocJJs  Chan.  242 ;  Swainev.  JPcrrine,  5  Johns.  Chan.  12. 
488  ;  Badqdy  v.  Bruce  and  Ilalsey,  4  Paige,  98. 

The  defendant  is  a  purchaser  of  the  equity  of  redemption  in 
the  premises  whereof  dower  is  demanded,  and  has  by  assign- 
inent  become  the  owner  of  a  mortgage  made  by  tho  husband 
prior  to  his  marriage  with  the  complainant.  On  the  one  side,  it 
ia  insisted,  that  by  tliis  assignment  the  mortgage  became  merged 
or  extinguished  when  it  came  into  the  defendant's  hands ;  and 
on  tho  other,  that  the  defendant  is  a  mortgagee  in  possession, 
and  the  complainant's  rights  thereby  barred.  A  purchaser  of  the 
equity  of  redemption  at  a  sheriffs  sale,  takes  the  property  cum 
onere,  and  acquires  no  rights  beyond  what  remain  in  the  mort- 
gagor after  satisfying  the  incumbranco  out  of  the  land.  If,  by 
any  device  or  circuity,  such  purchaser  should  procure  the  payment 
of  tho  mortgage  without  a  resort  to  the  land,  as  by  suit  against 
the  mortgagor  or  his  representatives  on  the  bond,  manifest  injus- 
tice would  take  place ;  for  ho  would  then  have  the  property  clear 
of  tho  very  debt  subject  to  which  it  wa&  sold.  By  such  a  course; 
a  purchaser,  for  a  nominal  sum,  might  become  possessed  of  a 
valuable  estate,  and  the  mortgagor  virtually  twice  discharge  the 
game  debt.  This  difficulty  was  presented  to  chancellor  Kent  and 
fully  settled  by  him,  ia  tho  case  of  Tice  v.  Anmn,ZJbhns.Ch. 
125.  Tho  ralo  ho  established  in  that  case  was  this:  If  a  credi- 
tor other  than  the  mortgagee  sells  tho  equity  of  redemption  by 
an  execution  at  law,  tho  mortgage  debt  remains  undisturbed,  and 
the  rights  of  the  mortgagor  over  and  above  the  mortgage  in  the 
property  arc  rightly  disposed  of  to  satisfy  his  creditors. 


OCTOBER  TERM,  1840.  357 


Hartshorne  v.  Hartshorne. 


This  case  presents  no  embarrassment.  But  suppose,  after  the 
equity  of  redemption  is  thus  sold  subject  to  the  iucumbrance,  the 
mortgagee  should  prosecute  his  bond  at  law,  and  undertake  to 
sell  other  property  than  that  contained  in  the  mortgage.  Then 
the  chancellor  held  that  a  court  of  equity  should  either  stay  such 
proceedings,  or  compel  the  creditor,  upon  payment,  to  assign 
over  his  debt  and  security  to  the  debtor,  to  enable  liim  to  indem- 
nify himself  out  of  the  mortgaged  premises.  But  in  the  case 
referred  to,  there  existed  a  still  greater  difficulty.  The  mort- 
gagee sold  the  equity  of  redemption  in  the  mortgaged  premises 
for  a  part  of  the  debt,  and  then  put  it  out  of  his  power  to  assign 
the  securities  to  the  mortgagor  by  actually  assigning  them  over 
to  the  purchaser  of  the  equity  of  redemption ;  and  to  prevent 
gross  injustice,  the  chancellor,  as  the  only  alternative,  held  the 
debt  extinguished  in  the  hands  of  the  purchaser.  All  this  pro- 
ceeds on  the  idea  that  the  purchaser  of  the  equity  of  redemption 
shall  in  no  event  hold  the  land  discharged  of  the  incumbrance, 
and  if  he  attempt  to  make  the  debt  by  buying  up  the  bond  and 
mortgage  and  recovering  the  amount  unjustly  out  of  the  obligor, 
the  debt  shall  in  his  hands  be  considered  extinguished.  In  a  case 
eo  circumstanced,  this  result  seems  unavoidable  to  prevent  the 
grossest  injustice  and  wrong.  But  I  do  not  understand  this  case 
as  going  the  length  of  saying,  that  a  purchaser  of  the  equity  of 
redemption  can  be  compelled,  in  all  cases,  to  pay  off  the  ante- 
cedent incumbrances  farther  than  the  land  itself  will  discharge 
them.  The  purchaser  placed  himself  in  a  peculiar  position,  and 
was  attempting  thereby  to  do  a  wrong ;  and  the  chancellor,  to 
avoid  such  wrong,  held  the  debt  canceled  in  his  hands.  There 
are  cases,  I  am  aware,  which  look  like  holding  the  purchaser 
liable  for  the  debt  personally,  but  I  cannot  think  that  such  is  the 
true  doctrine.  It  is  not  necessary  for  me  to  decide  this  question 
here,  but  I  desire  to  state  my  conviction,  that  the  purchaser  in 
liable  to  the  extent  of  the  land  purchased,  and  no  further,  and 
that  he  will  at  all  times  be  discharged  upon  releasing  the  land. 
There  is  no  privity  between  the  mortgagee  and  the  purchaser, 
and  I  cannot  see  upon  what  principle  he  can  be  reached,  except 


358  CASES  IN  CHANCERY, 


Hartshorne  v.  Hartsliorue. 


ft  be  througli  the  land  which  he  has  purchased.  I  speak  not 
now  of  a  case  where  the  purchaser  enters  into  special  obligation 
to  pay  antecedent  incumbrances ;  all  such  cases  will  be  governed 
by  the  terms  and  character  of  the  contract ;  but  of  the  ordinary 
purchaser  without  special  agreement,  depending  on  the  obliga- 
tion which  the  law  in  such  cases  imposes.  Indeed  it  is  matter  of 
doubt  whether  it  is  intended,  from  the  cases,  to  go  farther  than 
the  principle  as  I  have  stated  it.  The  doctrine  proceeds  upon 
the  idea  that  a  court  of  equity,  independent  of  any  express  con- 
tract, will  raise  upon  the  conscience  of  the  purchaser  an  obliga- 
tion to  indemnify  the  mortgagor  against  his  liability  on  the  mort- 
gage ;  but  to  what  extent  ?  Certainly  not  beyond  the  laud  pur- 
chased. This  subject  will  be  found  discussed  in  Waring  v. 
Ward,  7  Vesey.  jr.  337 ;  Cumberland  v.  Coddington,  3  Johns. 
Cli.  261;  Stevenson  and  Woodruffs.  Black,  Saxton,  342.  It 
is  every  day's  practice  to  sell  the  equity  of  redemption  by  an  exe- 
cution at  law,  sometimes  at  the  suit  of  the  mortgagee  and  some- 
times of  other  creditors.  If  a  purchaser  could  be  called  upon  to 
discharge  all  the  incumbrances  on  his  personal  liability,  it  would 
greatly  embarass  these  sales,  and  effectually  prevent  their  being 
made. 

But  whether  this  view  of  the  subject  be  correct  or  not,  and 
recognizing  the  decision  in  2  Johns.  Chan,  to  which  I  have  r^ 
ferred,  in  which  the  bond  and  mortgage  assigned  to  the  pur- 
chaser of  the  equity  of  redemption  was  held  to  be  an  extinguish- 
ment of  the  debt,  still,  as  it  affects  the  right  of  dower  of  tho 
widow  in  the  lands,  a  new  and  very  different  question  is  pre- 
sented. It  is  agreed,  that  if  tho  husband  before  marriage,  or  in 
conjunction  with  his  wife  after  marriage,  (the  deed  being  ac- 
knowledged by  the  wife,  in  due  form  of  law,)  execute  a  mort- 
gage, and  it  remains  in  the  hands  of  the  mortgagee,  tho  widow 
can  only  have  her  dower  subject  to  such  mortgage  ;  and  when 
this  defendant  purchased  the  equity  of  redemption,  he  purchased 
with  the  widow's  right  discharged  to  that  extent  on  the  property. 
Had  the  mortgage  remained  as  it  then  was,  in  the  hands  of  tho 
mortgagee,  the  widow's  dower  would*  have  been  subject  to  it, 


OCTOBER  TERM,  1840.  359 


Harlshorne  v.  Hartehorne. 


and  why  should  it  be  otherwise  now  that  it  is  transferred  to  tho 
purchaser  ?  Had  a  foreclosure  and  sale  taken-  place  under  tho 
mortgage,  the  widow  would  have  been  barred  her  rights,  except 
as  to  the  surplus  beyond  satisfying  the  mortgage.  At  her  hus- 
band's death  the  true  claim  this  widow  had  was  to  one-third  of 
the  land  after  the  mortgages  were  satisfied,  and  nothing  more. 
In  the  case  in  5  Johns.  Chan,  before  cited,  it  was  held  that  the 
widow  was  bound  to  contribute  her  ratable  proportion  towards  a 
mortgage  which  she  had  executed  with  her  husband,  and  which 
the  heir  had  been  obliged  to  pay  off,  before  allowing  her  dower 
in  the  land.  The  chancellor  in  that  case  says,  "  To  allow  her 
the  dower  in  the  land  without  contribution,  would  be  to  give  her 
the  same  right  that  she  would  have  been  entitled  to  if  there  had 
been  no  mortgage,  or  as  if  she  had  not  duly  joined  in  it.  It 
would  bo  to  give  her  dower  in  the  whole  absolute  interest  and 
estate  in  the  land,  when  she  was  entitled  to  dower  only  in  a 
part  of  that  interest  and  estate." 

But  the  case  of  Russell  v.  Austin,  in  1  Paige,  193,  will  be 
found  similar  to  the  one  we  are  now  considering.  That  was  a 
purchase  of  the  equity  of  redemption  at  a  sheriffs  sale,  and  an 
assignment  to  the  purchaser  of  a  bond  and  mortgage  made  by 
the  husband  and  wife.  It  was  there  argued,  that  the  debt  was 
extinguished  and  merged  by  the  assignment ;  but  the  court  held 
the  widow  entitled  to  her  dower  in  the  equity  of  redemption  only, 
subject  to  the  mortgage.  In  that  case,  as  in  this,  the  intention 
of  the  purchaser  not  to  extinguish  the  debt  was  manifest,  for  in- 
stead of  canceling  the  securities  he  had  them  assigned  to  him. 

From  every  view,  therefore,  which  I  have  been  able  to  give 
this  case,  I  cannot  think  this  widow  entitled  to  any  thing  more 
than  her  dower  in  the  lands  subject  to  the  outstanding  mort- 
gages, including  the  one  assigned  to  the  defendant.  She  is  en- 
titled to  her  dower  in  the  lauds  in  the  possession  of  the  defendant, 
(upon  the  case  stated  in  the  bill,)  upon  keeping  down  one-third 
of  the  interest  on  the  amount  due  on  the  property. 

As  to  the  parties,  I  do  not  see  the  necessity  of  bringing  Mr. 
Holmes  before  the  court.  His  claim  can  in  no  way  bo  affected 


300  CASES  IN  CHANCERY, 


Hartshorne  v   Hartsborne. 


by  any  decision  here.  It  is  a  question  entirely  between  the  com- 
plainant and  defendant.  The  same  rule  would  apply  to  any 
other  mortgage,  and  with  the  more  force,  if  the  mortgage  has 
been  paid  off  though  not  canceled  of  record.  As  to  Mr.  Baker, 
who  purchased  a  part  of  the  lands,  no  dower  is  sought  in  this 
action  of  those  lands,  and  he  cannot,  therefore,  be  a  necessary 
or  proper  party. 

While,  therefore,  my  opinion  is  with  the  defendant  on  the 
main  question  in  the  cause,  yet,  as  his  demurrer  is  to  the  whole 
bill,  and  the  complainant  is  entitled  to  her  dower  in  the  equity 
of  redemption,  and  as  there  is  no  defect  of  parties,  the  demurrer 
must  be  overruled  with  costs. 
Demurrer  overruled. 

CITED  in  Thompson  v.  Boyd.  1  Zdb.  61 ;— 64 ;  Den.  v.  Brown,  2  Dutch, 
204  ;  Dancan  v,  Smith,  2  Vr.  329  ;  Tichenor  v.  Dodd,  3  Gr.  Ch.  457  ; 
BoUes  v.  Wade,  Id.  400  ;  Hinchman  v.  Stiles,  1  Stock,  363  ;  Chiswell 
v.  Morris,  1  McCar.  103  ;— 104;  Eldridge  v.  Eldridge,  Id.  193  ;  Pal- 
mer v.  Carpenon,  2  C.  E.  Gr.  206 ;  Piersonv.  Hitchner,  10  C.  E.  Gr. 
334 ;  Crowell  v.  Hospital  of  St.  Barnabas,  12  G.  E.  Gr.  C55. 


EMA:STJEL  COYKENBALL  and  MARTIN  COYKENDALL  v.  MARY 
RUTHERFORD,  Executrix,  &c.  of  JOHN  RUTHERFORD,  de- 
ceased. 

Whera  a  testator  by  his  will  clevises  all  his  real  nnd  personal  estate  to  nine 
persons,  named  iu  the  will,  in  trust  for  tho  purposes  therein  expressed,  ami 
appoints  the  sumo  persons  by  riamo  executors,  with  full  power  to  them  and 
toam"jority  cf  them,  and  to  a  majority  of  the  survivors  of  them,  to  sell  hia 
Iand3  arid  t:>  execute  deeds  for  all  lands  contracted  to  be  sold  by  the  testator 
in  his  life  time  ;  if  one  of  tho  executors  dies  iii  the  life  timo  of  fio  testa  or. 
anil  all  tho  others  except  one  refuse  to  act,  the  acting  executor  is  authorized 
under  the  statutes  of  New-Jersey  to  convey  the  laud. 

Tins  bill  was  filed  hy  the  complainants  to  compel  the  specific 
performance  of  a  contract  entered  into  by  John  Rutherford,  in 
liia  life  time,  with  the  complainants,  for  the  conveyance  of  a 
tract  of  land  situate  in  the  comity  of  Sussex.  Tho  answer  of 
tho  defendant  admits  all  the  material  facts  charged  in  the  bill  of 
complaint,  but  states  that  doubts  have  been  suggested  by  her 


OCTOBER  TERM,  1840.  361 


Covkendall  v.  Rutherford. 


counsel  whether  the  testator  intended,  by  the  power  given  to  his 
executors  in  his  will,  that  deeds  should  be  made  by  any  one  of 
his  executors  who  might  prove  the  same ;  and  also,  whether  the 
'defendant,  under  the  statutes  of  the  state  of  New-Jersey,  is  law- 
fully authorized  by  the  will  to  execute  the  conveyance,  as  prayed 
for  by  the  complainants.  The  defendant  insists  that  the  com- 
plainants ought  not  to  require  her  to  execute  such  conveyance 
without  the  decree  and  direction  of  this  court,  and  submits  to 
act  in  the  matter  under  the  direction,  protection  and  indemnity 
of  the  court. 

The  cause  was  heard  upon  the  bill  and  answer. 

!     D.  Thompson,  for  complainant. 
7?.  Vanarsdale,  for  defendant, 

TUB  CHANCELLOR.  The  only  question  presented  by  the  bill 
and  answer  is,  whether  Mary  Rutherford,  the  defendant,  has 
the  power  by  the  will  of  John  Rutherford,  to  convey  the  lands  in 
question.  The  will  bears  date  the  8th  of  May,  1833.  By  it 
he  devises  all  his  real  and  personal  estate  to  nine  persons  therein 
named,  in  trust,  for  the  purposes  therein  expressed.  lie  then 
appoints  the  same  persons,  by  name,  executors,  with  full  power 
to  them,  and  to  a  majority  of  them,  and  to  a  majority  of  the 
survivors  of  them,  to  sell  his  lands,  and  to  execute  deeds  for  all 
lands  contracted  to  be  sold  by  the  testator  in  his  life  time.  There 
are  several  codicils  to  the  will,  which  make  no  alteration  finally 
as  to  the  executors,  except  the  addition  of  two  more,  Archibald 
Russell  and  his  wife,  to  the  number  already  named.  The  facts 
are  so  stated  in  the  answer,  though  it  would  seem  from  a  copy 
of  the  will  and  codicils  accompanying  the  papers,  that  the  testa- 
tor revoked  the  appointment  of  Robert  "Walter  Rutherford,  one 
of  the  executors  originally  named,  by  the  last  codicil,  made  tho 
2d  of  December,  1839  ;  but  this  cannot  vary  the  question  now 
to  be  settled.  One  of  the  executors,  Mary  Rutherford  Jay,  died 
before  the  testator,  and  the  rest  have  neglected  to  prove  the  will 
47 


362  CASES  IN  CHANCERY, 

Coykendall  v.  Rutherford. 

except  the  defendant,  Mary  Rutherford,  who  has  in  due  form 
of  law  proved  the  will  and  taken  upon  herself  the  execution 
thereof. 

At  the  common  law,  there  can  be  no  doubt,  all  the  executors 
named  must  join  in  the  deed  ;  but  the  statutes  of  New- Jersey 
have  altered  the  common  law  in  that  respect,  and  provided,  as  I 
think,  for  the  case  here  stated,  so  as  to  enable  the  executrix  who 
has  proved  the  will  to  execute  the  deed  alone.  By  the  act  of 
1795  it  is  provided,  that  where  lands  shall  be  devised  by  will  to 
executors  to  be  sold,  or  shall  be  ordered  to  be  sold  by  executors, 
and  after  the  testator's  death  part  of  such  executors  refuse  or 
neglect  to  act,  then  all  bargains  and  sales  of  the  lands  so  ordered 
to  be  sold,  made  by  such  of  the  executors  as  shall  accept  and 
prove  the  will,  shall  be  as  good  and  effectual  in  the  law  as  if  all 
those  named  in  the  will  as  executors  had  joined  in  the  bargain 
and  sale.  By  the  act  of  1815  it  is  provided,  that  if  by  will 
power  shall  be  given  to  two  or  more  executors  to  sell  the  testa- 
tor's real  estate,  and  one  or  more  of  the  executors  so  named  shall 
refuse  to  prove  the  will  or  die,  then,  unless  it  is  otherwise  ex- 
pressed in  the  will,  the  trust  shall  vest  in  the  acting  executors 
or  the  survivor  or  survivors,  who  may  execute  the  trust  alone. 
And  by  the  act  of  1817  it  is  provided,  that  where  lands  aro  de- 
vised by  will  to  executors  to  bo  sold,  or  shall  bo  ordered  to  be 
sold  by  executors,  and  one  or  more  of  them  shall  die  before  the 
testator,  and  the  surviving  executors  or  any  of  them  shall  accept 
the  appointment,  then  all  bargains  and  sales  of  lands  so  willed 
to  be  sold,  made  by  the  executor  so  accepting,  shall  bo  as  good 
and  effectual  in  the  law  as  if  all  the  executors  named  in  the  will 
had  joined  in  the  sale. 

The  act  of  1817  provides  clearly  for  the  case  of  the  cxecuto* 
who  died  before  the  testator;  and  the  acts  of  1795  and  1815 
provide  for  the  case  of  executors  neglecting  or  refusing  to  provo 
the  will. 

A  doubt  has  been  expressed  whether  the  language  of  the  will 
docs  not  show  an  intent  on  the  part  of  the  testator  against  allow- 
ing one  executor  alone  to  execute  tho  trust.  I  cannot  think  such 


OCTOBER  TERM,  1840.  3C3 

Coykendall  v.  Rutherford. 

was  his  intention,  or  he  would  in  express  terms  liave  so  declared 
In.  fact,  the  language  used  would  rather  imply  a  determination 
that  there  should  in  no  event  be  a  failure  in  executing  the  trust. 
He  probably  never  contemplated  that  any  would  decline  to  act. 

I  consider  the  power  to  sell  confided  to  the  executors  as  execu- 
tors,  and  not  personally.  They  arc  the  same  persons,  it  is  true, 
as  by  the  original  will  are  appointed  trustees  for  the  estate ;  but 
they  are  by  name  also  appointed  executors,  and  in  that  charac- 
ter directed  to  sell  lands,  and  particularly  to  f  ulfil  the  contracts 
which  the  testator  had  entered  into. 

As,  therefore,  my  opinion  is  that  the  defendant  may  legally 
convey  the  lands  in  question,  according  to  the  laws  of  this  state, 
and  as  by  the  answer  no  other  obstacle  is  interposed,  but  on  the 
contrary  the  whole  case  is  admitted,  the  complainants  will  bo 
entitled  to  a  decree  forthe  performance  of  their  contract,  and  that 
the  defendant  execute  a  deed  for  the  lands  accordingly. 

The  costs  of  both  parties  to  be  paid  out  of  the  estate  of  the 
testator. 

Decree  accordingly. 


BETSEY  Ross  v.  ZOPILAE  HATFIELD  and  others. 

The  fourth  section  of  the  act,  cnti  lei,  "An  act  to  prevent  in  certain  cases 
tho  abatement  of  Knits  a  id  reversal  of  judgments,"  (Rev.  Law-;  164,1  »a  in- 
tended to  apply  to  cases  where  6;/</*e  ad  of  law  tho  cause  of  action  survive*. 
Th  ;•  act  i*  designed  to  save  the  necessity  of  filing  bills  of  rovivor,  uot  (sup- 
plemental bills. 

If  a  suit  becomes  abated,  and  nothing  but  tho  death  of  the  party  i*  necessary 
to  bo  established  to  show  the  liability  of  tho  survivors,  a  bill  of  rovivor 
a1  one  is .  nffi  :ieut ;  but  where  new  matter  must  be  shown  and  proved,  Ihera 
a  supplementary  bill  most  be  filed. 

THE  facts  essential  to  an  understanding  of  tho  case,  appear 
in  the  opinion  of  the  chancellor. 


364:  CASES  IN  CHANCERY, 


Eossv.  Ha  field  et  al. 


£  Scudder,  for  complainant. 

F.  -Z?.  CJictwood  and  L  H.  Williamson,  for  defendants. 

THE  CHANCELLOE.  This  case  came  on  upon  the  final  hear- 
ir.g,  when  the  defendants  raised  and  insisted  upon  an  objection 
to  any  decree  in  the  situation  in  which  the  cause  stood.  That 
objection  must  first  be  disposed  of ;  for  whatever  the  merits  may 
be,  if  the  court  cannot  make  the  proper  decree,  it  will  avail 
nothing. 

The  bill  is  filed  to  recover  the  complainant's  dower  against 
three  defendants,  a  father,  son  and  grandson,  charging  Zophar 
Hatfield,  one  of  them,  as  being  the  tenant  of  the  freehold,  but 
also  charging  that  all  the  defendants  occupy  the  lands  alternate- 
ly, and  claim  to  be  owners,  and  combine  to  defeat  the  complain- 
ant out  of  her  just  rights.  The  defendants  have  answered,  and 
admitted  Zophar  Hatfield  to  be  the  owner  of  the  lands.  Since 
issue  was  joined  and  the  depositions  were  taken,  Zophar  Hat- 
field  has  died,  and  by  his  will  devised  the  lands  out  of  which 
dower  is  claimed,  to  Levi  Hatfield  his  son,  who  is  a  co-defendant. 
A  recovery,  therefore,  if  any,  must  be  had  against  Levi  Hat- 
field,  as  a  devisee  under  the  will.  Had  not  Zophar  Hatfield 
died,  undoubtedly  the  bill  must  have  been  dismissed  as  to  Levi 
Hatfield  and  Zophar  Hatfield  the  younger,  they  appearing  to  bo 
mere  tenants,  without  any  title  whatever  to  the  lands;  but 
whether  with  or  without  costs,  would  depend  on  circumstances. 
"No  supplemental  bill,  or  bill  of  revivor,  has  been  filed ;  but  the 
complainant  has  obtained  an  order  under  the  fourth  section  of  the 
act,  entitled,  "An  act  to  prevent  in  certain  cases  the  abatement 
of  suit  and  reversal  of  judgments,"  Rev.  Laws,  164,  (upon  a 
suggestion  of  the  death  of  Zophar  Hatfield,  and  that  the  cause 
of  action  survived  against  the  remaining  defendants,)  that  the 
cause  stand  revived  and  be  proceeded  in  against  the  surviving 
defendant.  This  order  further  authorizes  the  complainant  to 
exliibit  the  will,  and  to  take  depositions  if  necessary. 

I  think  this  is  a  mistake  in  the  course  of  practice.    This  ia 


APRIL  TERM,  1840.  3G5 


Bossv.  Hatfield  et  al. 


aot  a  caso  in  winch  the  cause  of  action  survived,  within  the 
meaning  of  that  act.  It  is  intended  to  apply  to  cases  where,  by 
the  act  of  law^the  cause  of  action  survives;  as  in  tho  caso  of  a 
suit  between  two  or  more  executors  or  trustees.  There  the  law 
declares  the  liability  of  the  survivors,  and  the  cause  of  action 
survives  against  them.  They  have  no  power  to  prevent  this 
conclusion,  and  this  statute  was  intended,  in  such  case,  to  sim- 
plify tho  proceedings ;  and  upon  the  mere  suggestion  of  tho 
death,  without  any  bill  of  rcvivor,  to  allow  a  complainant  to 
proceed  in  his  cause.  Here  the  surviving  defendant  takes  as  a 
purchaser,  by  devise,  and  there  must  be  a  supplemental  bill,  set- 
ting out  the  will  and  devise  under  it,  in  order  to  get  these  new  and 
important  facts  before  the  court,  and  to  give  the  defendant  an 
opportunity  to  answer  them.  The  defendant  may  deny  the  de- 
vise. What  decree  could  be  entered  in  this  case  ?  None  against 
Levi  Ilatfield  as  devisee  under  the  will  of  his  father,  for  that 
fact  is  nowhere  before  tho  court  in  the  pleadings ;  he  has  had 
no  opportunity  to  meet  the  charge;  and  in  the  character  in 
which  he  originally  stood,  it  fully  sippears  he  had  no  title  or  in- 
terest whatever  in  the  land. 

The  course  of  practice  is  uniform  on  this  subject.  If  a  suit 
becomes  abated,  and  nothing  but  tho  deatli  of  the  party  is  ne- 
cessary to  be  established  to  show  tho  liabilty  of  tho  survivors, 
there  a  bill  of  revivor  alone  is  sufficient ;  but  where  new  matters 
must  be  shown  and  proved,  as  in  tho  caso  of  a  settlement  or  a 
devise,  there  a  supplemental  bill  must  be  filed :  Clifford's  Plead- 
ing 107,  110;  Cooper's  E^.  Pleading,  63,  76. 

The  statute  before  referred  to  is  only  intended  to  save  tho 
necessity  of  filing  bills  of  revivor,  but  not  supplemental  bills. 
The  fifth  section  of  that  act  provides  for  cases  where  parties  die, 
and  the  cause  of  action  does  not  survive ;  then,  if  other  persona 
become  parties  in  interest  in  right  or  1>y  the  death  of  such  de- 
ceased party,  the  suit  may  proceed,  being  revived  against  the 
representatives  of  the  deceased  party ;  clearly  referring  to  tho 
case  of  heirs,  executors,  or  administrators.  In  such  a  case,  no- 
thing but  the  death  is  to  be  ascertained.  The  law  fixes  who  is 


306  CASES  IN  CHANCERY, 

Ro?s  v.  Hatfield,  et  al. 

the  heir  or  representative,  and  they  cannot  deny  it.  A  bill  of 
revivor,  therefore,  is  alone  necessary.  But  if  any  conveyance 
has  been  made,  or  devise,  so  that  the  title  as  well  as  the  person 
entitled  may  be  litigated,  then  it  must  be  set  out  in  a  supple- 
mental bill. 

The  revised  statutes  of  the  state  of  New- York  have  the  same 
provisions  in  substance  on  this  subject  as  ours,  and  have  received 
the  same  construction  which  I  have  given  them  :  Douglass  v. 
Sherman,  2  Paige's  Ch.  Rep.  358.  These  provisions  are  held 
to  apply  only  to  those  cases  where  by  former  practice  proceedings 
could  be  revived  and  continued  by  a  simple  bill  of  revivor.  I 
refer  also,  on  this  subject,  to  the  cases  of  Lecjgett,  v.  Dubois, 
2  PaiyJs  Ch.  Rep.  212,  and  to  Wilkinson  v.  Parish,  3  Ibid, 
653. 

In  this  case,  in  my  opinion,  there  must  be  a  supplemental  bill 
filed,  before  a  proper  decree  can  be  made  against  the  defendants, 
cr  either  of  them.  And  as  this  is  a  matter  of  practice  on  which 
there  may  have  been,  and  indeed  from  the  order  obtained  it 
seems  there  was  a  different  opinion  entertained,  I  shall  allow  a 
supplemental  bill  and  bill  of  revivor  to  be  filed  now,  on  pay- 
ment of  the  costs  of  the  hearing. 

Something  was  said  on  the  argument  that  the  heirs  at  law 
were  necessary  parties  to  a  supplemental  bill  in  this  case,  but 
that  question  is  not  now  before  me,  and  I  must  leave  it  to  the 
complainant  to  make  such  parties  to  her  bill  as  she  may  be  ad- 
vised are  necessary  and  proper. 

CITEP  is  Marlatt  v.  Warwick  &  Smith,  4  C.  E.  Gr.  445. 


ASA  TORRE Y  v.  ROBERT  BUCK  and  others. 

A.-I  application  to  the  court  to  compel  the  specific  performtmco  of  a  contract 
rests  in  sound  discretion,  and  tho  contract  will  be  enforced  or  not,  as  shall 
appear  most  a  ;reeablo  to  justice  and  equity. 

Wbcro,  on  a  contract  for  tho  purchase  of  real  estate  between  A.  and  B. ,  tho 
deed  is  made  to  C.  at  the  request  of  B.  ;  on  a  bill  to  Bet  aside  the  deed  foi 


OCTOBER  TEEM,  1840.  307 


Torre  v  v.  Duck  et  al. 


fraud,  C.  will  not  stnnd  in  any  other  or  better  situation  than  B.  the  pur- 
chaser would  h;ive  done  had  the  title  been  made  directly  to  him. 

The  substitution  of  the  name  of  a  third  person  in  the  deed  in  tho  p'.ace  of  the 
purchaser,  and  at  his  instunce,  will  not  place  the  grantee  in  the  situation  of 
a  b  <n-.i  fido  purchaser  without  notice. 

Supprfssio  veri  is  as  good  a  ground  for  tetting  asiJe  a  conyey-incc  ns  suggts- 
tiofalsi. 

Deed  set  aside  as  fraudulent  where  a  large  part  of  the  consideration  wai  pa:d 
in  stock  of  a  company  of  no  value,  although  the  purchaser,  who  w.is  cas  - 
ier  of  the  company,  refused  to  express  any  opinion  about  tho  stock  or  i  a 
value,  referring  tho  vendor  to  other  persons  for  information,  nnd  although 
the  vendor  himself  declared  that  he  knew  it  was  a  speculation  and  intended 
to  run  tho  risk. 

The  folly  and  indiscretion  of  a  vendor  can  never  justify  tho  vendee  in  obtain- 
ing his  property  without  compensation. 

THE  bill,  filed  on  the  6th  of  June,  1838,  states,  that  the 
complainant,  being  seized  of  a  valuable  house  and  lot  in  the  city 
of  Newark,  Lewis  Loomis,  of  the  city  of  New  York,  proposed 
to  purchase  it  for  ten  thousand  dollars  in  cash,  to  which  the 
complainant  consented.  That  Loomis  from  time  to  time  evaded 
the  execution  of  the  contract,  and  at  length  told  the  complainant 
that  he  could  not  raise  the  money,  but  that  he  knew  a  person 
who  probably  would  purchase  the  property,  and  offered  to  intro- 
duce the  complainant  to  him.  He  accordingly  accompanied  the 
complainant  to  the  office  of  the  "  United  States  foreign  and  do- 
mestic exchange  company,"  at  No.  8  Wall-street,  in  the  city  of 
New  York,  and  introduced  him  to  Robert  Buck,  one  of  the  de- 
fendants, and  who  was  then  stated  to  be,  and  in  fact  was,  the 
cashier  of  said  company.  That  Buck  then  represented  the  cha- 
racter of  said  company  to  be  high,  and  its  stock  equal  to  cash, 
and  offered  to  buy  the  complainant's  property  provided  he  would 
take  two  thousand  dollars  in  cash,  and  the  balance  of  the  pur- 
chase money  in  the  stock  of  the  said  company.  That  after  con- 
siderable conversation  Buck  declined  to  purchase,  but  said  ho 
knew  a  person  that  would  ;  and  soon  af terwards  ho  came  to 
Newark  with  Samuel  H.  Hamilton,  and  two  other  persons  of 
the  name  of  Hamilton,  whom  Buck  introduced  as  tho  persona 
likely  to  purchase  complainant's  property.  That  one  of  them 


363  CASES  IN  CHANCEIIY, 

Torrey  v.  Buck  et  al. 

offered  complainant  nine  thousand  dollars  for  the  property,  pro- 
vided the  complainant  would  take  stock  of  the  United  States 
foreign  and  domestic  exchange  company  in  part  payment ;  to 
which  proposal  the  complainant  subsequently  assented,  and  so 
informed  one  of  the  Hamiltons.  That  at  the  time  of  the  last 
negotiation  for  the  purchase  of  the  property,  both  Buck  and  the 
Ilamiltons  represented  the  stock  of  the  said  company  to  be  as 
good  as  cash.  That  during  the  negotiation,  Luck  and  the 
Hamiltons  acted  together ;  that  complainant  did  not  know  who 
was  purchasing,  nor  to  •tfhom  the  deed  was  to  bo  made,  until 
the  name  of  Samuel  II.  Hamilton  was  given  to  him  to  bo  insert- 
ed in  the  deed.  That  complainant  at  first  refused  to  take  more 
than  five  thousand  dollars  in  the  stock  of  said  company,  and 
claimed  the  balance,  excepting  seven  hundred  and  fifty  dollars, 
the  amount  of  a  mortgage  then  on  the  property,  to  be  paid  in 
cash ;  but  that  Buck  and  the  Ilamiltons,  or  one  of  them,  repre- 
sented that  they  had  not  money  enough  to  close  the  negotiation 
on  that  basis,  and  offered  complainant  a  note  given  by  John 
Trafton  for  twelve  hundred  and  fifty  dollars,  dated  January  2d, 
1838,  at  six  months,  endorsed  by  Buck,  as  so  much  cash  ;  and 
upon  their  assurances  that  they  would  discount  said  note  in  a  few 
days,  complainant  agreed  to  take  it,  and  also  to  take  fivio  thou- 
eand  one  hundred  dollars  worth  of  stock,  leaving  one  thousand 
nine  hundred  dollars  to  be  provided  for — of  which  sum  upwards 
of  one  thousand  three  hundred  dollars  was  paid  in  cash,  and  the 
balance  by  a  note  given  by  one  of  the  Ilamiltons  to  complainant. 
That  scrip  or  certificates  of  stock  of  the  United  States  foreign 
and  domestic  exchange  company,  signed  by  tho  president,  and 
by  Hobert  Buck,  cashier  of  said  company,  dated  on  tho  10th  of 
January,  1838,  and  issued  in  the  name  of  the  complainant,  ia 
several  different  sums,  amounting  to  five  thousand  one  hundred 
dollars,  which  had  been  brought  to  Newark  by  Buck  on  the  day 
of  tho  purchase,  were  thereupon  delivered  to  complainant,  to- 
gether with  tho  notes  of  Trafton  and  Hamilton,  and  a  deed  exe- 
cuted by  complainant  and  wife  to  Hamilton,  dated  13th  Janu- 
ary, 1838,  was  also  delivered  to  him ;  it  being  agreed  that  the  pos- 


OCTOBER  TERM,  1840.  3C9 

Torrey  v.  Bnck  et  nl. 

session  of  the  premises  should  be  delivered  between  the  first  and 
the  fifteenth  of  April  then  next.  The  bill  charges,  that  at  the 
time  of  tho  negotiations  for  the  salo  of  said  property  and  at  the 
time  of  the  execution  of  the  contract  and  the  transfer  of  the 
stock  to  the  complainant,  the  stock  of  the  said  company  was  of 
little  or  no  value ;  that  this  fact  was  well  known  to  the  defend- 
ants at  the  time  of  the  representations  so  made  by  them  to  him 
as  aforesaid  respecting  its  value  ;  that  the  said  representations 
were  utterly  false  and  fraudulent,  and  that  the  defendants  com- 
bined and  conspired  together  to  deceive  the  complainant  in  rela- 
tion to  the  value  of  the  said  stock,  and  to  induce  him  to  receive 
it  in  part  payment  for  the  premises  so  sold,  knowing  it  to  be6f 
little  or  no  value.  The  bill  further  states,  that  the  Traf ton  note 
is  of  no  value ;  that  no  part  of  it  can  be  recovered  ;  and  that 
Buck  and  Samuel  II.  Hamilton,  at  the  time  when  they  repre- 
sented to  complainant  that  the  note  was  good  and  that  it  would 
bo  discounted  in  a  few  days,  knew  it  to  be  of  little  or  no  value. 
That  complainant's  application  to  have  the  note  discounted,  af- 
ter being  decayed  from  time  to  time,  was  at  length  positively  re- 
fused ;  and  that  tho  complainant,  believing  that  a  gross  fraud 
had  been  practised  upon  him,  had  by  the  advice  of  his  counsel 
refused  to  deliver  possession  of  the  premises  to  Samuel  II.  Ham- 
ilton, the  grantee,  and  that  Hamilton  had  caused  an  action  of 
ejectment  to  be  commenced  for  the  recovery  of  the  possession, 
which  was  pending,  at  issue.  The  bill  prays,  that  the  deed  exe- 
cuted by  the  complainant  and  his  wife  to  Hamilton  may  be  de- 
clared void,  and  may  be  ordered  to  be  delivered  up  to  be  cancel- 
ed ;  or  that  Hamilton  may  be  decreed  to  reconvey  the  premises 
to  the  complainant  on  the  complainant's  repaying  to  him  the 
monies  received,  redeliveringthe  securities  paid  and  delivered  to 
the  complainant  as  the  consideration  of  the  purchase  of  said 
premises  ;  and  that  in  the  meantime  Hamilton  may  be  restrain- 
ed by  injunction  from  further  proceeding  at  law  to  recover  pos- 
session of  the  premises. 

On  filing  tho  bill  an  injunction  issued,  pursuant  to  the  prayer 
of  the  bill. 
48 


J70  CASES  IN  CHANCERY, 

Torrcy  v.  Buck  et  al. 

The  answer  of  Robert  Buck  and  Samuel  H.  Hamilton  ad- 
mits the  complainant's  title  to  the  premises,  as  set  forth  in  the 
bill  of  complaint — denies  all  knowledge  on  the  part  of  either  of 
said  defendants  of  any  offer  made  by  Lewis  Loomis  for  the  pre- 
mises, or  of  any  negotiation  ever  pending  between  him  and  the 
complainant  for  the  purchase  of  said  property.  Hamilton,  for 
himself,  states,  that  in  January,  1838,  ho  learned  from  Buck 
that  he  had  been  negotiating  for  the  purchase  of  a  house  and 
lot  in  Newark  with  the  complainant,  who  wanted  in  payment 
more  cash  than  he,  Buck,  could  pay ;  and  that  if  Hamilton  was 
disposed  to  purchase  the  property,  he,  Buck,  could  make  a  sat- 
isfactory payment  in  property  ho  held  to  the  amount  of  five  thou- 
sand dollars,  which  sum  he  was  desirous  of  investing  in  the  pur- 
chase of  part  of  a  patent  right  which  Hamilton  then  owned  for 
sawing  timber  and  felling  forest  trees.  That  Hamilton  went  to 
Newark,  accompanied  by  his  brother,  A.  J.  Hamilton,  a  lawyer 
residing  in  the  city  of  New-York,  for  the  purpose  of  seeing  the 
property  and  having  the  title  examined.  That  after  seeing  the 
property,  and  ascertaining  the  incumbrances  upon  it,  he  returned 
to  New- York  and  informed  Buck  that  he  would  give  nine  thou- 
sand dollars  and  no  more  for  it,  provided  Buck  would  receive  in 
payment  a  conveyance  of  the  patent  right  for  sawing  timber  and 
felling  trees  for  the  states  of  Massachusetts  and  Vermont  for  five 
thousand  dollars,  a  transfer  of  two  notes  of  hand  from  John 
Trafton  for  twelve  hundred  and  fifty  dollars  each,  secured  by 
mortgage  on  a  factory  and  water-power  at  Shapleigh,  in  the 
state  of  Maine,  valued  at  twelve  thousand  dollars,  and  the  bal- 
;ance  of  fifteen  hundred  dollars  in  cash.  To  this  proposal  Buck 
.objected,  insisting  upon  a  larger  payment  in  cash,  in  order  to 
^extinguish  the  incumbrances  on  the  property ;  and  Hamilton 
then  proposed  to  pay  two  thousand  dollars  in  cash,  one  of  the 
Trafton  notes,  and  the  balance  by  his  own  note  for  seven  hun- 
dred and  fifty  dollars,  payable  in  nine  months.  That  the  com- 
plainant subsequently  called  on  Hamilton  for  information  re- 
specting the  Trafton  note,  and  stated  that  if  he  could  be  satisfied 
in  regard  to  that  note,  he  would  accept  Buck's  offer  for  the  pro- 


OCTOBER  TERM,  1840.  371 


Torrev  v.  Buck  et  al. 


perty  ;  soon  after  which  Buck  informed  Hamilton  that  ho  had 
purchased  tho  complainant's  property,  and  that  he,  Buck,  would 
accept  Hamilton's  offer  as  last  above  stated  for  it,  and  named  a 
lay  when  they  should  go  to  Newark  to  consummate  tho  contract. 
On  tho  10th  of  January,  1838,  Hamilton,  accompanied  by  his 
father  and  brother,  (neither  of  whom  had  any  interest  in  tho 
purchase,)  and  by  Buck,  went  to  Newark,  and  there  completed 
the  purchase.  Before  any  thing  was  done  in  consummation  of 
the  contract,  Hamilton  told  the  complainant,  in  answer  to  his 
inquiry  respecting  tho  value  of  tho  stock  of  the  "  United  States 
foreign  and  domestic  exchange  company,"  that  he  knew  nothing 
about  it,  had  never  heard  of  its  existence  until  the  inquiry  was 
made,  had  no  interest  in  it,  and  knew  nothing  of  its  vahie. 
Complainant  then  stated  that  he  was  to  tako  fifty  shares  of  it  in 
part  payment  for  the  property  ;  that  ho  had  made  inquiries  of 
various  persons  respecting  it,  some  of  whom  said  it  was  worth 
eomething,  and  some  that  it  was  worth  nothing ;  said  ho  was 
aware  it  was  a  matter  of  speculation  entirely ;  it  was  a  lottery ; 
•'t  might  be  of  value,  and  it  might  not ;  but  ho  had  determined 
to  take  it  and  run  his  chance.  Buck  was  present  at  tho  time, 
and  said  he  had  told  complainant  he  must  satisfy  himself  abont 
its  value ;  that  he,  Buck,  was  casliier  of  the  company,  and  that 
he  would  not  make  any  representation  to  the  complainant  to  in- 
duce him  to  take  it;  that  complainant  had  made  his  own 
inquiries  about  it,  and  had  concluded  to  tako  it,  let  it  be  worth 
more  or  less  ;  to  which  statement  of  Buck  tho  complainant  fully 
assented.  Denies  that  Hamilton  ever  had  any  interest,  directly 
or  indirectly,  in  the  stock  of  the  said  company,  or  that  he  ever 
made  any  representations  about  the  company  or  its  stock  to  the 
complainant,  other  than  as  above  stated.  States  that  as  Buck 
had  agreed  to  convey  the  property  to  Hamilton  upon  the  terms 
above  stated,  it  was  agreed  that  the  deed  should  be  mado  direct- 
ly from  complainant  to  Hamilton ;  that  the  brother  of  Hamilton 
remained  in  Newark,  by  agreement  among  the  parties,  to  finish 
the  investigation  respecting  the  title  and  incumbrances  and  to 
receive  the  deed,  which  was  delivered  to  liim  accordingly,  and 


372  CASES  IN  CHANCEKY, 

Torrey  v.  Buck  et  al. 

the  consideration  paid  by  him  as  the  agent  and  attorney  of 
Hamilton  the  defendant.  That  Traf ton's  note  was  not  due  until 
the  5th  of  July,  1838,  and  this  defendant  has  every  reason  to 
believe  that  the  note  -will  be  paid,  as  the  maker,  where  he  is 
known,  is  represented  to  be  a  man  of  respectability  and  proper- 
ty ;  and  that  Hamilton  afterwards  discounted  his  own  noto  for 
seven  hundred  and  fifty  dollars,  but  denies  that  he  ever  promised 
the  complainant  to  discount  Traf  ton's  note.  Denies  that  Hamil- 
ton ever  treated  with  the  complainant,  or  any  other  person  ex- 
cept Buck,  for  the  purchase  of  the  property ;  that  he  ever  pro- 
posed to  buy  provided  the  complainant  would  take  part  payment 
i:i  the  etock  of  said  company  ;  that  he  ever  made  any  represen- 
tations himself,  or  assented  to  any  representations  made  by  Buck, 
respecting  the  value  of  the  etock,  and  that  he  had  any  further  or 
other  connection  with  Buck  in  the  purchase  than  as  above  etatod. 
States  that  liis  contract  was  made  entirely  with  Buck,  in  the  city 
of  New- York ;  that  he  went  to  Newark  merely  for  the  purpose 
of  executing  a  contract  previously  made,  and  that  the  deed  from 
the  complainant  was  made  directly  to  him  at  the  request  of  the 
complainant  and  Back,  to  save  the  expense  of  two  deeds.  Ad- 
mits that  possession  of  the  premises  was  to  have  been  delivered 
to  Hamilton  bctv;een  tho  first  and  fifteenth  of  April,  1838,  and 
that  tho  complainant  having  refused  to  deliver  the  possession, 
Hamilton  Ind  commenced  an  action  of  ejectment  to  recover  pos- 
session, as  stated  in  tho  complainant's  bill  of  complaint. 

The  defendant  Robert  Buck,  answering  for  himself,  saith, 
that  he  hath  no  knowledge  of  any  negotiation  between  the  com- 
plainant and  Loomis  for  the  purchase  of  the  property.  Admits 
that  ho  was  cashier  of  the  United  States  foreign  and  domestic 
cxchingo  company,  but  denies  that  he  ever  told  complainant 
that  its  stock  was  equal  to  cash.  Admits  that  he  purchased  com- 
plainant's property  for  nine  thousand  dollars,  to  be  paid  as  fol- 
lows, viz. :  five  thousand  dollars  in  tho  stock  of  said  company : 
Traf  ton's  note  endorsed  by  this  defendant  for  twelve  hundred  and 
fifty  dollars,  dated  January  2d,  1838,  and  payable  at  six  months ; 
Samuel  II.  Hamilton's  note  for  seven  hundred  and  fifty  dollars, 


OCTOBER  TERM,  1840.  373 

1  orrey  v.  Buck  eti-1. 

payable  in  nine  months,  and  the  balance  in  cash.  Denies  that 
ho  ever  gave  complainant  any  opinion  about  the  stock  or  its 
value,  but  told  him  that  he  must  inquire  for  himself  and  satisfy 
himself  of  its  value.  States  that  complainant  did  inquire,  and 
eaid  that  some  persons  told  him  it  "was  of  value,  others  that  it 
was  good  for  nothing ;  that  he  knew  it  was  a  lottery,  but  that 
he  was  determined  to  take  it  and  run  his  chance,  and  so  stated 
to  this  defendant.  That  this  defendant  answered  truly  to  all 
inquiries  put  to  him  respecting  said  stock  by  the  complainant ; 
that  he  used  no  deception  and  made  no  misrepresentation  to  the 
complainant,  for  he  ref erred  the  complainant  to  others  for  infor- 
mation as  to  the  character  of  the  stock  and  its  value,  and  ex- 
pressly refused  to  give  any  opinion  himself  respecting  it.  Ad- 
mits the  contract  with  Hamilton  and  the  sale  of  the  property  to 
him,  as  set  forth  by  Hamilton  in  the  answer.  Denies  that  there 
was  any  other  connection  between  this  defendant  and  his  co- 
defendant  Hamilton  than  as  above  stated  in  his  answer,  or  that 
he  or  any  other  person  to  his  knowledge  or  beh'ef,  did  any  act  or 
made  any  representation  calculated  to  deceive  or  defraud  the 
complainant.  Admits  the  delivery  of  Trafton's  note  and  the 
script  of  the  company  in  part  satisfaction  of  the  purchase  money 
for  said  premises.  Denies  that  he,  or  any  other  person  in  his 
presence,  ever  promised  to  discount  the  Trafton  note.  Denies  that 
he  has  any  knowledge  of  Trafton  or  of  his  ability  to  pay  the 
note,  or  that  he  ever  made  any  representations  to  the  complain- 
ant respecting  it.  Admits  the  refusal  of  the  complainant  to  de- 
liver possession  of  the  premises,  and  the  bringing  of  an  action  of 
ejectment  by  Hamilton  to  recover  possession. 

The  cause  came  on  for  hearing  upon  the  pleadings  and  proofs, 
at  a  special  term  held  at  Xeivark,  on  the  3d  of  August,  1840. 

0.  £  Hoisted  and  /.  II.  Williamson,  for  complainant,  in- 
sisted that  as  between  Torrcy  and  Buck,  the  transaction  was 
fwidulent.  The  contract  was  made  and  the  fraud  perpetrated 
by  Buck,  and  he  cannot  protect  himself  by  having  the  deed 
made  to  a  third  person.  Such  third  person  is  not,  and  cannot 


CASES  IN  eUAKCEEY, 


Torrey  v.  Buck  ct  al. 


be  placed  in  tlie  liglit  of  a  bona  fide  purchaser  without  no- 
tice. 

That  the  concealment  of  material  circumstances  by  one  of  the 
parties  to  a  contract,  was  always  a  ground  for  relief  in  equity. 
Sujppreasio  veri  affords  as  perfect  a  ground  for  relief  as  sugges- 
tiofalsi :  Broderick  v.  Brodericlt,  1  P.  IF.  239 ;  Pierson  v. 
Morgan,  2  Bro.  Chan.  Cas.  389;  Maddeford  v.  Aust&iekj 
2  Cond.  Eng.  Chan.  R.  45  ;  Bolles  v.  Stewart,  1  Sch.  and 
Lcf.  209 ;  Gordon  v.  Gordon,  3  Swanston,  473 ;  HitcJicock 
v.  Gcddinqs,  2  Cond.  Exc.  JK.  55 ;  Turner  v.  Harvey,  4  Cond. 
Eng.  Chan.  12.  79;  Groves  v.  Perldns,  9  Cond.  Eng.  Chan. 
It.  413. 

The  stock  of  the  company  which  was  transferred  to  the  com- 
plainant in  part  payment  of  the  purchase  money  for  his  property 
was  of  no  value  whatever.  The  company  was  a  mere  bubble; 
it  had  no  character.  Its  stock  never  possessed  any  value.  Equi- 
ty will  compel  the  repayment  of  money  paid  upon  such  a  con- 
sideration, and  is  bound  to  relieve  against  a  contract  founded  on 
such  consideration :  Colt  v.  Woollaston,  2  P.  W.  154. 

The  fact  that  the  cashier  of-  a  company,  who  must  have 
known  its  condition,  refused  to  give  any  opinion  or  information 
respecting  its  character,  or  the  value  of  its  stock,  is  in  itself  evi- 
dence of  fraud. 

The  court  may  make  a  decree  as  between  the  defendants,  di- 
recting Buck  to  return  the  patent  right  conveyed  to  him  by 
Hamilton. 

F.  B.  Ohetwood  and  A.  Armstrong,  contra,  cited  2  Stores 
E<1.  5 ;  Johns.  Chan.  B.  223. 

TIIE  CHANOELLOE.  The  object  of  this  suit  is  to  set  aside 
and  declare  null  and  void,  a  conveyance  executed  by  the  com- 
plainant to  Samuel  II.  Hamilton,  one  of  the  defendants,  for 
fraud  and  misrepresentation.  It  is  a  contract  executed,  and  pre- 
sents, therefore,  a  veryMifferent  question  from  that  where  a  party 
calls  upon  the  court  to  compel  a  specific  performance.  Those 


OCTOBER  TER:J.  is*o.  srs 


Torroy  v  Bnck  et  al. 


cases  always  rest  in  sound  discretion,  and  the  contract  will  be 
enforced  or  not,  as  sliall  appear  most  agreeable  to  justice  and 
equity.  This  is  a  case  which  must  abide  the  result,  one  way  or 
the  other,  of  the  stern  proof  of  fraud.  This  fraud  may  be  made 
cut  cither  by  a  direct  proof  of  certain  facts,  or  may  be  inferred 
from  the  circumstances  attending  the  whole  case. 

The  complainant  was  the  owner  of  a  valuable  house  and  lot 
of  land  in  ^Newark,  and  in  the  fall  of  1837,  being  desirous  of 
disposing  of  it,  negotiated  for  that  purpose  in  the  first  instance 
with  Lewis  Loom  is,  and  actually  concluded  a  bargain  to  convey 
it  to  him  for  ten  thousand  dollars.  After  some  chaffering  and 
delay,  Loomis.  declared  his  inability  to  fulfil  the  contract  himself, 
but  said  he  could  introduce  the  complainant  to  a  gentleman  who 
would  buy  his  place,  and  accordingly  introduced  him  to  the  de- 
fendant, Buck.  After  taking  time  to  examine  the  property,  Buck 
finally  agreed  with  the  complainant  to  purchase  it  for  nine  thou- 
sand dollars,  and  to  pay  him  fivo  thousand  dollars  in  the  stock 
of  a  company  in  the  city  of  New- York,  of  wliich  ho  the  said 
Buck  was  cashier,  called  the  "  United  States  foreign  and  domes- 
tic exchange  company,"  twelve  hundred  and  fifty  dollars  in  a 
note  of  John  Traf  ton  of  the  state  of  Maine,  and  the  residue  in 
money.  There  was  a  mortgage  on  the  place  of  seven  hundred 
and  fifty  dollars,  which  was  to  make  so  much  of  the  purchase 
money.  The  result  was  that  the  complainant,  in  January,  1838, 
conveyed  his  property  for  the  consideration  of  nine  thousand  dol- 
lars— seven  hundred  and  fifty  dollars  of  which  was  the  amount 
of  the  mortgage  on  the  place,  five  thousand  one  hundred  dollars 
in  the  stock  of  the  aforesaid  company,  twelve  hundred  and  fifty 
dollars  in  the  Trafton  note,  and  the  balance,  being  nineteen 
hundred  dollars,  was  paid  in  cash  or  its  equivalent.  Tho  fraud 
charged  relates  to  the  Trafton  note  and  the  stock,  from  which 
the  complainant  has  never  realized  any  thing,  and  which  it  is 
alleged  are  not  now,  and  were  not  at  the  time  of  the  transac- 

O  ' 

tion,  of  any  value.  As  these  constitute  a  great  part  of  the  con- 
sideration, it  becomes  very  important  to  look  into  the  charges  of 
fraud,  and  see  on  what  foundation  they  rest.  The  bill  asks  to 


376  CASES  IN  CHANCERY, 

Torrey  v.  B-ck  et  al. 

have  the  contract  rescinded  upon  returning  whatever  has  been 
received  by  the  complainant ;  showing  thereby  a  willingness 
on  the  part  of  the  complainant,  while  he  asks  equity,  to  do 
equity. 

The  case  has  been  embarrassed  somewhat  by  the  introduction 
of  a  third  party,  the  defendant  Samuel  II.  Hamilton,  to  whom 
the  deed  for  the  property,  at  the  instance  of  Buck,  was  finally 
made  by  the  complainant ;  and  yet  I  do  not  see  how  it  varies 
the  case.  The  bargain  was  made  between  the  complainant  and 
Buck ;  this  is  admitted  by  the  defendants'  answers ;  and  the  deed 
inade  on  such  bargain,  by  direction  of  Buck,  (who  had  made  a 
further  contract  with  Hamilton,)  directly  to  him  to  avoid  multi- 
plicity of  deed.  Hamilton  cannot  claim,  in  such  case,  to  stand 
in  any  other  or  better  situation  than  Buck  would,  had  the  deed 
been  made  to  him.  The  conveyance  is  made  on  the  contract 
entered  into  between  the  complainant  and  Buck,  and  the  mere 
substitution  of  the  name  of  another  person,  at  the  instance  of 
Buck,  cannot  place  that  person  in  the  situation  of  a  bona  fide 
purchaser  without  notice.  The  three  defendants,  Loomis,  Buck 
and  Hamilton,  all  lived  in  the  city  of  New- York ;  Loomis  and 
Buck  appear  to  have  been  acquainted,  so  do  Hamilton  and  Buck, 
but  not  Hamilton  and  Loomis.  Hamilton  had  a  patent  right  for 
cawing  timber  and  felling  trees,  which  he  was  selling  out  with 
the  right  for  certain  states.  He  had  sold  the  right  for  the  state 
of  Maine  to  Traf ton,  for  which  he  got  the  note  heretofore  refer- 
red to,  and  in  which  purchase,  it  would  seem,  Buck  was  inter- 
ested ;  and  the  arrangement  made  between  Buck  and  Hamilton 
was,  that  he  should  take  the  deed  from  the  complainant  for  his 
property,  pay  him  the  money,  give  him  the  Trafton  note  and 
tho  stock,  and  for  the  stock  give  to  him,  Buck,  the  right  for  the 
aforesaid  patent  for  tho  states  of  Vermont  and  Massachusetts. 
The  result  of  all  this  was,  that  Buck  got  the  right  for  said  patent 
in  tho  states  of  Yerinont  and  Massachusetts  for  his  stock ;  and 
Hamilton,  for  such  patent  right,  for  the  Trafton  note,  and  about 
nineteen  hundred  dollars  in  money,  got  a  deed  for  the  complain- 
ant's property  worth  nine  thousand  dollars,  subject  to  a  mortgage 


OCTOBER  TEEM,  1840.  877 

Torrcy  v.  Bock  otal.         . 

jf  seven  hundred  and  fifty  dollars.  The  complainant  lias  real- 
ize.! as  yet  only  the  nineteen  hundred  dollars  paid  in  money, 
with,  as  I  presume  from  the  evidence,  little  or  no  prospect  of 
ever  receiving  one  cent  more. 

Was  the  transaction  fraudulent,  or  not ;  and  if  so,  can  this 
court  afford  tho  relief  asked  ?  There  is  no  more  common  head 
of  equity  jurisdiction  than  to  relieve  against  frauds,  and  when- 
ever they  are  made  to  appear  in  any  of  the  transactions  between, 
man  and  man,  this  court  is  bound  to  relieve  against  them.  I 
shall  consider  this  case  as  if  tho  deed  had  been  made  direct  to 
Buck  ;  that  \vill  disentangle  it,  and,  as  1  have  already  stated, 
the  fact  that  the  deed  \vas  filled  up  \vith  the  name  of  Hamilton, 
instead  of  that  of  Bucjr,  cannot,  in  my  judgment,  in  any  way 
affect  the  case.  There  is  no  pretence  that  the  complainant  had 
any  thing  to  do  with  the  contract  between  Buck  and  Ilamilton, 
nor,  indeed,  does  it  appear  that  he  was  even  informed  what  that 
contract  was.  He  dealt  only  with  Buck. 

As  to  the  fraud  charged  in  the  Trafton  note,  I  am  of  opinion 
there  is  no  proof  that  will  justify  any  such  conclusion.  The 
mere  fact  that  the  note  was  not  paid  at  maturity,  furnishes  no 
such  proof.  As  tho  note  was  not  due  at  the  time  the  complain- 
ant received  it,  it  came  to  him  as  a  negotiable  instrument,  and 
many  of  the  legal  objections  to  it  were  thereby  removed,  if  any 
existed.  But  I  do  not  perceive  that  any  effort  has  been  made  by 
the  complainant  to  recover  the  money  since  the  note  became  due. 
I  can  see  no  ground  for  saying,  from  tho  evidence  in  this  cause, 
either  that  tho  note  was  not  valid  and  binding  on  tho  maker,  or 
that  he  was  unable  at  the  time  it  was  made,  or  has  become  so 
since,  to  discharge  it.  AVe  know  there  have  been  great  vicissi- 
tudes in  the  condition  of  very  many  men  within  the  last  few 
years,  and  a  large  amount  of  the  obligations  made  in  good  faith 
and  with  an  honest  intention,  remain  undischarged.  If  tho  com- 
plainant intended  to  rest  his  case  at  all  on  this  point,  ho  was 
bound  to  show  what  was  the  consideration  of  the  note,  and  what 
the  condition  of  the  maker.  For  aught  that  I  can  discover,  the 
note  may  have  been  given  for  value,  and  the  maker  able  to  pay. 
49 


378 


Torrey  v.  Buck  et  al. 


I  think,  therefore,  the  charge  of  fraud,  so  far  as  this  note  is  con- 
cerned, unsupported  by  the  evidence. 

The  remaining  ground  for  sustaining  the  charge  of  fraud,  is 
of  a  very  different  character,  and  from  the  first  breaking  of  the 
case  before  me,  has  made  a  deep  impression  on  my  mind.  W  hat 
was  this  stock,  of  which  Buck  prevailed  on  the  complainant  to 
take  live  thousand  one  hundred  dollars  on  a  purchase  of  nine 
thousand  dollars  ?  I  cannot  learn  that  the  company  was  ever 
incorporated  under  the  laws  of  the  state  of  New- York,  though 
located  in  the  city  of  New- York.  I  cannot  learn  that  it  ever 
had  any  standing  either  there  or  elsewhere,  or  indeed  that  any  of 
its  stock  was  oversold  or  transferred  except  to  the  complainant. 
The  defendants,  in  their  first  answer,  do  not  say  any  thing  on 
this  subject,  although  the  charge  is  distinctly  made  in  the  bill 
that  the  stock  was  of  little  or  no  value ;  and  when,  upon  excep- 
tion taken  to  the  answer  for  this  cause,  and  sustained,  a.further 
answer  is  put  in,  what  says  the  defendant  Buck  to  this  part  of 
the  case  ?  lie  answers  literally,  that  he  did  not  know  at  the 
time  of  tlie  negotiation,  or  at  an}'  other  time,  that  said  stock  was 
"  of  little  or  no  value ; "  that  he  had  understood  from  the  presi- 
dent that  the  company  had  mortgages  to  secure  stock  subscribed 
to  an  amount  between  two  and  four  hundred  thousand  dollars, 
some  of  which  ho  had  seen ;  and  that  from  such  information  he 
believed  said  stock  to  be  "  of  value ; "  but  of  the  precise  or  more 
certain  amount  of  the  value  of  said  stock  or  of  said  mortgages 
he  professes  to  have  had  no  other  knowledge  or  information. 
That  he  never  knew  or  heard  of  the  price  of  any  of  the  stock 
except  that  sold  to  the  complainant,  nor  does  he  know  anything 
further  of  the  value  of  the  stock.  What  kind  of  answer  is  that 
to  this  important  inquiry  ?  The  defendant,  by  the  very  mode  of 
answering,  must  satisfy  every  mind  that  the  charge  against  this 
stock  was  true — that  it  was  a  mere  bubble.  But  the  evidence 
has  placed  this  subject  beyond  all  doubt.  Hawey  A.  Hatch 
testifies,  that  ho  knew  this  institution,  and  that  the  stock  was  of 
no  value.  lie  had  fivo  thousand  dollars  of  the  stock,  and  lie 
does  not  think  that  any  person  who  knew  the  institution  would 


OCTOBER  TERM,  1840.  379 

Torroy  v.  Back  et  nl. 

have  given  him  one  dollar  a  share  for  it.  That  he  had  fifty  dol- 
lars in  the  bills  of  the  company,  twelve  dollars  of  which  he  gave 
away,  and  thirty-eight  dollars  of  it  he  gave  to  his  landlord  to 
make  him  such  allowance  on  his  board  as  he  could  get  for  them. 
This  was  more  than  a  year  before,  and  his  landlord  had  inf orm- 
cd  him  that  he  could  not  get  one  cent  for  them.  ITo  further 
says,  that  ho  has  heard  the  institution  called  a  swindling  insti- 
tution by  various  persons,  and  from  those  who  had  been  con- 
nected with  it.  Daniel  Mallory  says  he  knows  this  institution ; 
it  was  got  up  by  Albert  0.  Demeritt,  who  has  a  bad  character; 
The  stock  never  had  any  value.  The  institution  was  got  up  as 
a  fraud,  and  was  so  considered  by  all.  To  tliis  evidence  there 
is  no  witness  called  to  make  any  contradiction.  There  is  no 
doubt  that  the  stock  is  utterly  worthless.  The  whole  affair  was 
a  bubble,  and  if  mortgages  were  taken  for  stock,  there  is  little 
doubt  it  was  upon  very  insufficient  and  uncertain  property. 

The  defence,  however,  was  not  rested  so  much  upon  the  stock 
being  of  any  value,  as  upon  the  fact  that  the  complain  ant  had  a  full 
and  fair  opportunity  to  inquire  into  the  character  of  the  institution 
for  himself,  and  particularly  that  the  defendant  over  and  over 
again  declined  to  express  any  opinion  himself  as  to  its  value. 
This  last  matter  is  evidently,  from  the  answers  and  the  evidence, 
considered  by  the  defendants  a  strong  point  in  their  cause — that 
Buck  would  not  give  the  complainant  the  slightest  opinion  as  to 
the  value  of  the  stock,  or  the  character  of  the  institution,  but 
referred  him  to  others,  and  particularly  to  the  president  of  tho 
company. 

There  is  a  feature  in  this  case  which  has  a  material  bearing 
with  me.  The  defendant,  Buck,  at  the  time  of  the  negotiation, 
was  the  cashier  of  this  company,  and  as  such  had,  or  should 
have  had,  free  access  to  all  the  papers,  and  full  knowledge  of  its 
condition  ;  and  if  any  thing  was  concealed  from  him,  that  fact 
was  certain  evidence  that  all  was  not  right.  The  fact  that  Buck, 
cashier  as  he  was,  declined  to  give  the  complainant  any  informa- 
tion respecting  the  company  or  its  stock,  and  no\\'  predicating 
his  defence  mainly  on  that,  furnishes,  in  my  view,  strong  cvi- 


380  CASES  IN  CHANCERY, 

Torrey  v.  Buck  et  al. 

dence  against  him.  A  cashier  of  a  company,  and  know  nothing 
of  its  affairs ! — and  that  too,  when  other  people  knew  it  to  be 
worthless.  I  cannot  suppose  such  a  state  of  things,  and  if  it 
was  so,  it  was  notice  to  him  that  the  institution,  in  the  language 
of  one  of  the  witnesses,  "  had  no  bottom."  It  is  this  very  hold- 
ing back  of  information  which  in  this  case  created  all  the  diffi- 
culty. A  suppressw  veri  is  as  good  a  reason  for  setting  aside  a 
conveyance  as  a  suggestio  falsi :  Broderick  v.  Broderick,  1 
Peere  Williams^  239  ;  Pearson  v.  Morgan,  2  Brown's  Chan. 
Cases,  389.  Suppose  Buck  had  come  out  with  the  naked  truth, 
and  said,  I  am  the  cashier  of  this  company,  but  whether  it  is 
worth  any  thing  or  not  is  matter  of  doubt ;  I  cannot  say  to  you 
from  my  knowledge  that  the  stock  is  worth  one  cent ; — would 
the  complainant  have  taken  the  stock  2  No.  It  would  have 
ended  all  the  difficulty.  But  he  declined  expressing  any  opinion, 
and  referred  him  to  others,  and  particularly  to  the  president  oi 
tho  company.  The  complainant  did  inquire,  and  said  some 
persons  told  him  it  was  good,  and  some  that  it  was  good  for 
nothing;  that  ho  knew  it  was  a  speculation,  and  ho  meant  to 
run  the  risk.  If  a  case  could  bo  made  excusing  tho  fraud,  found- 
ed on  the  folly  and  indiscretion  of  the  complainant,  this  is  cor 
tainly  that  case.  The  man  seems  to  have  been  infatuated  ;  but 
the  folly  of  the  complainant  can  never  justify  the  defendant  in 
taking  away  his  property  without  compensation.  This  is  not  the 
case  of  stock  which  has  varied  in  the  market  with  the  times,  but 
of  stock  which  never  had  any  value. 

I  cannot  tolerate  tho  idea  for  one  moment,  that,  relying  on  the 
weakness  and  credulity  of  the  complainant,  a  man,  himself  the 
cashier,  shall  passed  the  stock  of  a  company  without  any  value, 
to  the  amount  of  live  thousand  one  hundred  dollars  on  the  pur- 
chase of  nine  thousand  dollars,  and  then  defend  himself  upon 
the  ground  that  lie  did  not  profess  to  give  him  any  information 
respecting  it. 

Fair  dealing,  and  the  preservation  of  the  rights  of  men,  call 
loudly,  I  think,  on  this  court,  to  set  aside  this  whole  con- 
tract. 


OCTOBER  TERM,  1840.  381 

Torrey  v.  Ruck  et  nl. 

There  has  been  much  evidence  as  to  the  value  of  the  property. 
I  think  that  of  no  sort  of  consequence.  The  parties  fixed  upon 
their  own  price,  and  from  the  evidence,  at  the  time,  it  would 
seem  to  me  the  price  iixed  was  not  much  out  of  the  way.  Sinco 
then  property  has  further  depreciated,  and  a  restoration  to  tho 
same  state  of  things  as  existed  before  the  execution  of  the  deed 
will  be  less  to  be  regretted  by  the  defendants. 

It  is  my  opinion,  after  caref  ally  examining  this  case,  that  tho 
deed  from  tho  complainant  to  Samuel  II.  Hamilton  should  be  set 
aside,  upon  his  being  repaid,  with  interest,  the  money  advanced 
by  him,  and  having  returned  to  him  tho  Trafton  note  and  tho 
certificates  of  stock ;  and  that  tho  injunction  be  made  perpetual. 
As  between  the  defendants,  Buck  must  restore  to  Hamilton  what 
he  received  for  hid  stock,  and  take  back  his  stock.  The  costs  of 
tho  complainant  to  be  paid  by  the  defendant,  Robert  Buck.  Tho 
bill,  as  to  Loomis,  must  be  dismissed. 

The  following  decree  was  thereupon  made : — "  It  is  ordered, 
adjudged  and  decreed,  that  it  be  referred  to  William  M.  Scudder, 
esquire,  one  of  the  masters  of  this  court,  to  take  an  account  of 
all  sums  of  money  paid  by  the  said  defendant,  Samuel  II.Ham- 
ilton,  cither  in  part  payment  of  the  price  of  the  lot  of  land  and 
premises  described  and  conveyed  in  and  by  the  deed  from  tho 
said  complainant,  Asa  Torrey,  and  Mary  his  wife,  to  the  said 
Samuel  H.  Hamilton,  dated  the  thirteenth  day  of  January,  in 
the  year  of  our  Lord  eighteen  hundred  and  thirty-eight,  and  in 
the  bill  of  complaint  particularly  set  forth,  or  towards  satisfac- 
tion of  tho  amount  of  principal  or  interest  due  on  any  mortgage 
or  other  lien  and  incumbrance  on  the  said  land  and  premises  at 
the  date  of  the  said  deod,  or  otherwise,  for  the  advantage  and 
improvement  of  the  said  land  and  premises,  or  any  houses  or 
other  buildings  thereon  ;  and  also  of  the  dates  of  all  such  pay- 
ments, respectively.  And  it  is  further  ordered,  that  upon  the 
complainant's  paying  or  tendering  to  the  said  defendant,  Samuel 
II.  Hamilton,  or  to  his  solicitor  in  this  cause,  within  forty  days 
after  the  said  master  shall  have  made  his  report,  at  such  tune 


382  CASES  IK  CHANCERY, 

Torrey  v.  Buck  et  al. 

and  place  as  the  said  master  shall  appoint,  the  full  amount;  of 
such  payments,  as  the  same  shall  be  ascertained  and  reported  by 
said  master,  together  with  lawful  interest  thereon  from  the  time 
of  such  payments,  respectively,  and  upon  the  complainant's  de- 
livering to  the  said  defendant,  Samuel  H.  Hamilton,  or  to  his 
solicitor  in  this  cause,  a  certain  promissory  note  mentioned  in 
the  complainant's  bill  of  complaint,  dated  the  second  day  of 
January,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  thirty-eight,  made  and  signed  by  one  John  Trafton,  for  tho 
payment  of  twelve  hundred  and  fifty  dollars  in  six  months  from 
tho  date  thereof,  to  the  said  Robert  Buck  or  order,  and  by  him 
endorsed ;  and  also  on  the  complainant's  assigning  and  trans- 
ferring to  the  said  Samuel  H.  Hamilton,  all  the  shares  and  in- 
terest of  and  in  the  United  States  foreign  and  domestic  exchange 
company,  mentioned  in  the  pleadings  and  proofs  in  this  cause, 
which  were  received  by  the  said  complainant  in  part  payment  of 
the  price  of  the  said  land  and  premises  above  mentioned,  the 
E-aid  deed  of  conveyance  from  the  said  Asa  Torrey  and  Mary  his 
wife,  to  the  said  Samuel  H.  Hamilton,  shall  be  vacated  and  ren- 
dered null  and  void,  and  the  said  Samuel  H.  Hamilton  shall  and 
do  reconvey  the  said  land  and  premises  in  the  said  deed  descri- 
bed, to  the  said  Asa  Torrey,  or  to  such  person  as  he  shall  ap- 
point, free  and  clear  of  and  from  all  incumbrance  done  or  made 
by  the  said  Samuel  H.  Hamilton,  or  by  any  claiming  by,  from 
or  under  him ;  and  also,  that  the  injunction  heretofore  issued  in 
this  cause  be  made  perpetual.  And  in  case  the  said  complainant 
shall  not,  within  the  time  aforesaid,  pay  or  tender  to  the  said 
Samuel  H.  Hamilton,  or  to  liis  solicitor  in  this  cause,  the  full 
amount  which  shall  be  ascertained  and  reported  by  tho  master 
as  aforesaid,  together  with  the  interest  tjiereon  as  aforesaid,  and 
also  deliver  to  the  said  Samuel  H.  Hamilton,  or  his  solicitor,  the 
said  promissory  note  of  John  Trafton,  and  also  assign  and  trans. 
for  to  the  said  Samuel  II.  Hamilton  the  said  shares  and  interest 
in  the  eaid  the  United  States  foreign  and  domestic  exchange  com- 
pany, it  is  further  ordered,  adjudged  and  decreed,  that  in  that 
case  the  said  complainant's  bill  do  stand  dismissed  out  of  this 


OCTOBER  TERM,  1840.  383 


Torrey  v.  Bnck  et  nl. 


court,  PO  far  as  relates  to  or  concerns  the  said  Samuel  II.  Ham- 
ilton, with  costs  to  be  taxed.  And  it  is  further  ordered,  adjudged 
and  decreed,  that  the  said  defendant,  Robert  Buck,  do  rcconvey 
to  the  said  Samuel  II.  Hamilton,  or  to  such  person  as  he  shall 
appoint,  the  patent  right  for  felling  forest  trees  and  sawing  tim- 
ber in  the  states  of  Massachusetts  and  Vermont,  mentioned  in  the 
pleadings  and  proofs  in  this  cause,  upon  the  said  Samuel  II. 
Hamilton  assigning  and  transferring  to  the  said  Robert  Buck,  or 
to  such  person  as  he  shall  appoint,  the  shares  and  interest  of  and 
in  the  said  the  United  States  foreign  and  domestic  exchange  com- 
pany, above  directed  to  be  assigned  and  transferred  by  the  said 
Asa  Torrey  to  the  said  Samuel  II.  Hamilton ;  and  that  the  com- 
plainant's bill  of  complaint  be  dismissed  as  against  the  said  Lewis 
Loomis ;  and  that  the  said  Robert  Buck  do  pay  to  the  complain- 
ant his  costs  in  this  suit,  to  be  taxed.  And  for  the  better  taking 
of  the  account  above  directed,  the  parties  are  to  produce  before 
the  said  master,  as  they  shall  be  required,  all  deeds,  books,  pa- 
pers and  writings  in  their  custody  or  power,  relating  to  the  mat- 
ters above  referred  to  the  said  master,  and  are  to  be  examined  up- 
on interrogatories  toucliing  the  same,  as  the  said  master  shall 
direct ;  and  that  the  testimony  and  exhibits  heretofore  taken  or 
made  in  the  cause,  may  bo  used  before  the  said  master,  and  the 
parties  shall  also  be  at  liberty  to  take  further  evidence  in  relation 
to  the  matters  hereby  referred ;  and  the  said  master  is  to  mako 
his  report  with  all  convenient  speed,  and  any  of  the  parties  are 
to  be  at  liberty  to  apply  to  the  court  as  occasion  shall  require." 

CITED  IN  Stovcr't  Ad.  v.  Wood,  11  C.  K  Gr.  422. 


OASES 


THE  COURT  OF  CHANCERY 

•  <OF  THE  STATE  OF  NEW-JERSEY. 
JANUARY    TERM,    1841. 


ALICE  A.  V.  MANNERS  and  JANE  MA.RTA  MANNEJRS  v.  JOHN 
S.  MANNERS  and  others. 

Equiiy  i3  not  tho  proper  foram,  nor  is  ft  bill  for  partition  the  proper  action, 
for  trying  the  legal  tLle  to  lands. 

\Vhere,  upon  n  bill  for  partition,  the  defendants  dispute  the  complainants'  ti- 
tle, tho  rule  in  equity  is  to  retain  the  suit  until  the  complainants  shall  estab- 
lish their  right  at  law. 

THE  complainants  filed  their  bill  for  the  partition  of  a  farm  in 
the  county  of  ILmterdon ;  to  one  equal  undivided  fourteenth 
part  of  which  they  claimed  title,  under  the  will  of  John  Man- 
ners, deceased.  The  defendants,  by  their  answer,  insisted,  that 
the  complainants,  under  the  will,  acquired  no  title  to  the  prem- 
ises whereof  partition  was  sought  to  be  made.  No  other  objec- 
tion was  raised  to  the  partition,  and  the  only  point  made  by  the 
pleadings  was,  tho  true  construction  of  the  will  of  the  said  tes- 
tator. The  case  was  submitted  upon  written  argument,  both 
parties  desiring  that  the  question  of  title  should  be  settled  by 
the  court. 


JANUARY  TERM,  1841.         ^          385 


Manners  v.  Manners. 


Saxton,  for  complainants. 
Hoisted,  for  defendants. 

THE  CHANCELLOS.  The  complainants  are  children  of  Abra- 
ham Manners,  deceased,  and  claim  to  have  title,  each,  to  one 
fourteenth  part  of  a  certain  farm  in  the  county  of  Hunterdon, 
and  seek,  by  their  bill,  to  have  a  partition  of  the  same,  accord- 
ing to  the  practice  of  this  court.  The  rights  of  these  complain- 
ants depend  entirely  upon  the  construction  of  the  devise  mado 
to  David  Manners,  their  grandfather,  by  the  -will  of  John  Man- 
ners, which  bears  date  on  the  30th  of  November,  1805.  The/ 
contend  that  the  remainder  vested,  at  the  death  of  the  testator, 
and  was  capable  of  being  conveyed  by  their  grandfather,  or  of 
descending  to  his  heirs  at  law.  This  construction  is  resisted  l-j 
the  defendants,  who  contend  that  the  remainder  was  contin- 
gent, and,  as  the  father  of  the  complainants  died  before  their 
grandfather,  no  estate  whatever  in  the  lands  descended  to  tho 
complainants.  The  facts,  as  stated  by  the  bill,  are  admitted  by 
the  answer. 

Thns,  it  will  be  seen,  that  this  is  a  case  of  disputed  title  to 
lands,  and  the  reason  for  declining  a  partition  by  the  defend- 
ants, is,  that  the  complainants  have  no  rights  in  the  j:  remises. 
This  is  not  the  action,  or  the  forum,  to  try  a  question  of  th*3 
character ;  and  every  rule  of  propriety  forbids  that  a  suit  fcr  par- 
tition should  be  made  a  mode  of  trying  the  legal  title  to  lands. 
The  rule  in  such  case,  is,  to  retain  the  suit  until  the  complain- 
ants shall  establish  their  rights  at  law :  Douglass,  773  ;  2  Ver- 
non,  232 ;  1  Johns.  Ch.  Ill ;  4  Johns.  CJi.  271.  A  contrary 
practice  could  answer  no  valuable  purpose,  as  neither  pariy 
would  be  bound  by  the  decision  here  made.  Tv"hcn  thejoona- 
plainants  satisfy  the  supreme  court  of  their  right,  (which  is  t'lD 
only  proper  tribunal  to  determine  that  question,)  it  will  then  bcx 
time  to  seek  for  a  partition.  If  a  partition  should  now  be  orde~- 
ed,  and  npon  a  trial  at  law  it  should  be  adjudged  that  the  com- 
plainants had  no  title,  injustice  would  be  done  the  defendants. 
50 


386  CASES  IN  CHAKCEKT, 


Manners  v.  Manners. 


It  is  the  legal  title  alone,  in  this  case,  that  creates  any  difficulty, 
and  not  an  equitable  one.  I  shall  retain  this  suit,  to  the  end 
that  the  complainants  may,  without  any  unreasonable  delay,  ob- 
tain a  decision  at  law  upon  their  title,  and  leave  the  cause  open 
with  the  privilege  to  either  party  to  apply  for  further  order  in 
the  same. 


CITED  in  Dewitt  v.  Ackcvmtm,  2  C.  R  Gr.  215 ;  Say  v.  E&tcl,  3  (7.  E. 
Or.  262. 


APOLLOS  "WETMORE  and  DAVID  TV".  "WETMORE  v.  HEJSRY  H. 
DYER  et  ux  et  al. 


TVhero  any  of  the  defendants  reside  in  this  state,  and  ore  served  with  process, 
it  is  not  necessary,  unless  tinder  special  circumstances,  that  the  order  for 
the  appearance  of  absent  defendants  should  be  published  in  any  newspaper 
out  of  the  state.  Foreign  publication  is  only  required  •where  all  of  tho  de- 
fendants reside  oat  of  the  state.  * 


BILL  for  foreclosure. 

J.  D.  Miller,  on  behalf  of  tho  complainants,  applied  for  an 
order  for  publication  ;  the  subpoena  having  been  returned  at  the 
present  term,  served  upon  some  of  the  defendants,  and  accom- 
panied by  an  affidavit  stating  that  the  others  resided  out  of  the 
state. 

THE  CHANCELLOR.  Take  the  order  directing  the  publication 
within  the  state.  By  the  practice  of  the  court  it  is  unnecessary, 
unless  under  special  circumstances,  to  advertise  the  order  out  of 
the  state,  where  any  of  the  defendants  reside  in  the  state,  and 
are  served  with  process.  Foreign  publication  is  only  required 
where  all  the  defendants  reside  out  of  the  state, 

CITED  in  Oram  y.  Dcnnison,  2  Leas.  439. 


JANUARY  TERM,  1841. 


JAMES  PIIELPS  and  GEORGE  SPOFFORD  v.  EDWARD 
CURTIS  et  al. 

A.  complainant  will  not  bo  ordered  to  answer  interrogatories  •which  tiro  not 
filed  within  fifteen  d«iys  after  filing  the  answer,  unless  a  sufficient  reason  b« 
disclosed  to  excuse  the  neglect  on  the  part  of  the  defendant  to  file  his  io.er- 
rogatorics  pursuant  to  the  rule  of  the  court 

Vanderooort,  on  behalf  of  Edward  Curtis,  one  of  the  de- 
fendants, applied  for  an  order  upon  the  complainants  to  answer 
certain  interrogatories  exhibited  by  the  defendant.  In  support  of 
the  motion,  he  read  an  affidavit  of  the  defendant,  stating  that 
the  answers  to  the  interrogatories  were  essential  to  his  defence  in 
the  cause. 

E.  B.  D.  Ogden,  contra.  The  answer  in  this  cause  was 
filed  in  July  last.  The  testimony  has  been  closed,  and  the  cause 
is  set  down  for  final  hearing  at  the  present  term.  The  inter- 
rogatories were  not  filed  until  since  the  first,  day  of  January  i»- 
Btant.  The  rule  requires  that  the  interrogatories  should  be  filed 
within  fifteen  days  after  filing  the  answer.  Rules,  xii.  s.  1. 

TIIE  CHANCELLOR.  The  motion  must  be  denied.  The  affi- 
davit discloses  no  sufficient  excuse  for  the  neglect,  on  the  part  of 
the  defendant,  to  file  his  interrogatories  pursuant  to  the  rule  of 
court. 

Motion  denied. 


JOHN  LA.TTON  v.  JAMES  C.  IVANS  and  others. 

Where  the  bill  han  been  sworn  to.  and  an  injunction  issued  and  served,  no 
alteration  shall  be  made  in  the  original  bill  on  file  ;  but  the  amended  bill 
most  L  e  engrossed  anew,  and  annexed  to  the  original. 

THE  bill  in  this  cause  was  filed  for  the  foreclosure  of  a  mort- 
gage and  for  an  injunction  to  restrain  the  tenant  in  possession, 


388  CASES  IN  CHANCERY, 

Layton   v.  lyans  et  al. 

•who  was  the  purchaser  of  the  equity  of  redemption,  from  com- 
mitting waste.  An  injunction  had  been  granted  and  served  upon 
the  tenant  in  possession.  Through  mistake  he  was  called  in  the 
bill  and  in  the  writ  of  injunction,  James  C.  Ivans,  senior,  in- 
gtead  of  William  Ivans,  senior,  which  was  his  true  name. 


,  for  complainant,  now  moved  to  amend  the  original 
bill  of  complaint,  by  striking  out  the  name  of  James  C.  Ivans, 
senior,  and  inserting  the  real  name  of  the  tenant. 

THE  CHANCELLOR.  The  bill  having  been  sworn  to,  no  al- 
teration should  be  made  in  the  original  on  file  ;  the  more  espe- 
cially, where  an  injunction  has  been  granted  and  served.  — 
Rules,  x.  G.  Let  the  amendment  be  made,  the  bill  be  engross- 
ed anew,  sworn  to,  annexed  to  the  original  bill,  and  filed,  and 
art  injunction  issue  against  the  tenant  by  his  true  name. 
Order  accordingly. 


Ex  parte  SAMUEL  A.  ALLEN. 

Where,  upon  petition  for  surplus  money,  an  order  of  reference  is  made  to  a 
master,  the  master  mast  make  his  report,  and  a  final  order  of  the  court  ba 
mode  in  tho  premises,  before  the  money  can  be  paid  over. 

A  DECREE  for  foreclosure  and  sale  of  certain  mortgaged 
premises,  in  the  county  of  Salem,  had  been  made  in  this  court, 
by  virtue  of  which  tho  premises  had  been  sold,  and  after  satis- 
fying the  complainant's  demand,  there  remained  a  surplus  of 
the  proceeds  of  the  sale  in  tho  hands  of  the  officer  making  the  sale. 
Samuel  A.  Allen  filed  his  petition,  praying  that  the  surplus, 
after  the  satisfaction  of  prior  liens,  should  be  paid  to  him.  It 
appeared  by  the  petition  that  he  was  a  judgment  creditor  of  tho 
mortgagor,  and  the  last  incnmbrancer  upon  the  mortgaged 
premises. 


JANUARY  TERM,  1841.  389 

Ex  parte  Samuel  A.  Allen. 

7?.  P.  Thompson^  on  behalf  of  the  petition,  now  applied 
to  the  court  for  an  order  of  reference  to  a  master,  to  ascertain  the 
amount  of  the  surplus  and  the  rights  of  the  petitioner.  lie  als:> 
asked  for  an  order,  directing  the  master  (in  whose  hands  the 
money  was  deposited  by  consent)  to  pay  over  the  surplus  mo- 
ney to  the  petitioner,  in  case  it  should  appear  that  he  was  enti- 
tled to  receive  it,  without  the  further  order  of  the  court. 

Tun.  CHANCELLOR.  It  is  necessary  that  the  master  should 
report  to  this  court,  in  order  that  all  parties  interested  may  have 
an  opportunity  to  file  exceptions.  The  final  action  of  this  court 
must  be  had  in  the  premises,  before  the  money  can  be  paid  over 
Let  the  order  of  reference  be  made  in  the  usual  form. 
Order  accordingly. 


CASEb 


THE    COURT  OF  CHANCERY 

OF  THE  STATE  OF  tfEW-JEKSEY. 
APRIL  TERM,  1841. 


ABRAHAM  J.  BEEKY  v.   The  EXECUTORS  OF  ISAAC  J.  VAN 
"WmKLE,  deceased. 

Where  by  the  terms  of  a  lease  it  was  agreed  that  the  lessee  should  malco  im- 
provements on  the  demised  premises,  at  his  own  costs  and  charges,  and 
that  at  the  expiration  of  the  term  all  the  improvements  BO  made  should  l>o- 
and  remain  tho  property  of  the  lessor,  ha  paying  to  the  lessee  the  valvn 
thereof — (he*  improvements  are  to  be  valned  as  they  were  at  the  time  the 
lease  expired. 

If  tho  lessor  covenant  that  the  Jessee  may,  at  any  time  during  the  term ,  erect 
a  carding  end  fulling  mill,  and  any  other  machinery,  npon  tho  demised 
premises,  and  that  at  the  ezpuation  of  the  term  all  improvements  made  up- 
011  the  lot  shall  bo  the  property  of  the  lessor,  ho  paying  for  the  same;  tho 
improvements  to  be  paid  for  by  the  landlord  are  such  only  as  he  had  pre- 
viously authorized  to  be  made. 

THE  bill  in  this  cause  was  filed  to  compel  the  specific  perform- 
ance of  a  covenant  contained  in  a  lease,  that  at  the  expiration 
of  the  term,  the  improvements  made  on  the  demised  premises  by 
the  lessee,  should  remain  the  property  of  the  lessor,  he  paying 
the  lessee  the  valne  thereof,  or  satMying  him  for  such  improve- 


APRIL  TERM,  1841.  391 

Berry  v.  Ei'rs  of  Vim  V\  inkle. 

ments.*  The  cause  was  heard  upon  the  pleadings  and  proof  a, 
and  at  October  term,  1839,  a  reference  to  a  master  was  ordered, 
to  ascertain  the  value  of  the  improvements  at  the  termination  of 
the  lease,  and  the  amount  due  the  defendants  for  rent.  The 
master  having  made  his  report,  exceptions  were  filed  by  both 
parties,  and  the  cause  came  on  for  hearing  at  April  term,  1841, 
upon  the  exceptions  to  the  report. 

A.  0.  Zdbridde,  for  complainant. 
J.  Speer,  for  defendants. 

Cases  cited  by  defendants'  counsel.  2  Kenfa  Com.  280 ; 
Hilliard's  AMdg\  12 ;  9  East.  245,  n. ;  4  Cond.  Eng.  Chan. 
7?.  428,  499. 

THE  CHANCELLOR.  "When  this  cause  was  heard  on  the 
pleadings  and  proofs,  the  relief  sought  by  the  complainant  in  this 
court  was  denied,  except  compensation  for  improvements  placed 
on  the  property  during  the  lease.  A  reference  was  directed  to  a 
master,  to  ascertain  the  value  of  such  improvements  as  were 
made  within  the  scope  and  meaning  of  the  covenants  in  tho 
lease,  and  also  the  amount  of  rent  due  the  defendants.  Tho 
master  has  made  his  report  on  these  subjects,  to  which  excep- 
tions have  been  filed  by  both  parties,  and  I  am  now  to  settlo 
those  exceptions. 

There  arc  two  important  questions  on  which  the  parties  differ 
widely,  and  they  run  through  the  whole  case.  If  these  are  sat- 
isfactorily settled,  it  will  be  seen  that  much  of  the  difficulty  in 
the  cause  will  be  at  an  end. 

The  first  of  these  relates  to  tJie  time  at  which  tho  valuation 
of  the  improvements  should  be  made.  Upon  this  subject  I  am 
confirmed  in  the  opinion  heretofore  expressed,  that  they  must  bo 
valued  as  they  were  at  the  time  the  lease  expired.  This  was  a 
point  on  which  the  counsel  for  the  defendants  desired  an  opportu- 

•  For  the  nature  of  the  bill  and  answer,  see  ante,  page  269. 


392  CASES  IN  CHANCERY, 

Berry  v.  Ex'rs  of  Van  Winkle. 

nity  to  be  further  heard ;  and  I  remember  well  to  have  assented 
that  he  might  have  the  order  so  drawn  as  to  require  the  master  to 
report  the  state  of  the  improvements,  as  well  as  the  date  of  the 
order,  as  at  the  expiration  of  the  lease ;  and  on  the  final  hearing 
I  would  adopt  the  one  or  the  other,  as  might  seem  to  be  proper. 
Through  inadvertence  the  order  was  not  so  modified,  but  followed 
the  opinion  as  delivered.  I  have,  nevertheless,  thought  it  my 
dnty  to  review  that  question,  and,  as  I  still  tliink  I  can  estimate 
the  improvements  only  as  they  were  at  the  end  of  the  loase, 
there  exists  no  necessity  for  any  change  in  the  order  as  it  stands. 
The  lease  expired  on  the  7th  of  March,  1835,  and  this  bill  was 
filed  on  the  23d  of  the  same  month,  a  few  days  afterwards.  Tho 
relief  sought,  was  for  compensation  for  certain  improvements 
placed  by  the  tenant  on  the  premises,  which  the  landlord  cove- 
nanted to  pay  for.  Had  not  the  complainant  been  entitled  to 
such  compensation  at  the  time  of  filing  his  bill,  ho  must  havo 
failed  in  his  suit  altogether ;  but  the  court  decided  otherwise,  and 
there  is  no  propriety  in  referring  the  time  for  fixing  this  valua- 
tion to  any  later  period.  The  lease  contemplates  a  settlement  of 
this  whole  question  at  its  expiration :  then  it  is  that  the  build- 
ings are  to  be  examined,  and  a  final  adjustment  made.  Every 
thing  looks  to  that  time.  The  subsequent  controversies  between 
the  parties,  or  any  suits  they  may  have  brought,  cannot  vary 
their  legal  or  equitable  rights  under  the  lease.  Nor  can  it  be 
Baid  that  the  order  made  by  a  former  chancellor,  staying  proceed- 
ings in  an  ejectment  brought  by  the  landlord,  kept  him  out  of 
possession  after  the  lease  expired.  That  ejectment  was  brought  to 
recover  the  possession  before  the  lease  expired,  for  non-payment 
of  rent,  under  a  clause  in  the  lease ;  but  he  was  at  liberty  after 
it  expired,  if  any  real  difficulty  existed  about  the  possession,  to 
bring  a  new  action.  He  never  did  so,  and  it  would  seem  quite 
as  probable  from  the  case,  that  neither  party  at  that  time  want- 
ed the  possession.  However  that  may  be,  no  new  suit  was 
brought.  Tho  remedies,  in  case  the  tenant  unlawfully  holds 
over,  are  ample,  and  some  of  them  penal  in  their  character.  In 
every  view,  then,  it  appears  to  me  that  we  must  value  the  iin- 


APRIL  TERM,  1841.  393 

Berry  v.  Ex'rs  of  Van  Winkle. 

]>rovemcnts  as  they  were  when  the  lease  expired,  and  interest 
upon  the  amount  must  bo  carried  forward  to  the  date  of  the  mas- 
ter's report. 

Another  and  a  still  more  important  consideration,  is,  to  ascer- 
tain and  Bcttlo  what  are  the  improvements  the  defendants  are 
bound  to  pay  for  under  the  lease.  The  true  construction  of  the 
writing  in  this  respect  is  now  for  the  first  time  presented,  though 
it  may  be  considered  the  most  important  question  in  the  cause. 
It  was  not  made  a  point  on  the  hearing  for  instructions  to  the 
master  in  settling  the  reference,  and  it  is  probable  at  that  time 
the  difficulties  which  have  since  arisen  as  to  its  true  meaning 
T7crc  not  anticipated.  I  confess  there  arc  difficulties  in  its  con- 
struction, and  it  is  no  way  strange  that  the  master  should  have 
felt  himself  under  some  embarrassment.  The  lessor,  Mr.  Van 
TTiulilc,  (a  fanner,  I  think,)  was  the  owner  of  a  water-power 
with  lands  adjoining,  and  leased  them  for  the  term  of  twenty-one 
years.  At  the  time,  there  was  an  old  saw-mill  on  the  premises. 
The  rent  reserved  was  only  forty  dollars  a  year.  In  the  lease  he 
makes  this  covenant  :  That  the  lessee  and  his  assigns  might,  at 
any  time  during  the  demise,  at  his  or  their  own  proper  cost,  erect 
"  a  carding  and  fulling  mill  or  any  other  machinery  y"  and 
that,  at  the  expiration  of  the  demise,  all  improvements  made 
upon  tlie  lot  should  be  the  property  of  the  lessor,  he  paying  for 
the  same.  The  tenant  went  into  possession,  erected  buildings, 
put  machinery  into  them,  and  among  the  rest  built  a  saw-mill 
with  its  appendages.  It  is  clear  that  the  landlord,  although  he 
agrees  to  pay  for  all  improvements  placed  upon  the  lot,  had  refer- 
ence only  to  such  as  he  had  previously  authorized  to  be  made. 
The  tenant  had  no  power  to  place  there  what  he  pleased,  and 
then  ask  compensation  for  them.  This  could  never  have  been 
the  intention  of  the  parties,  or  they  would  not  have  previously 
specified  the  buildings  the  tenant  might  erect.  The  words  "  .ill 
improvements,"  which  the  landlord  agreed  to  pay  for,  has  refer- 
ence to  all  such  only  as  by  the  previous  parts  of  the  lease  it  had 
been  agreed  might  be  placed  on  the  lot.  That  license  extended 
only  to  "  a  carding  and  fulling  mill  or  any  other  machinery." 
51 


394  CASES  IN  CHANCERY, 

Berry  v.  Ex'rs  of  Van  Winkle. 

As  to  the  buildings,  there  is  no  great  difficulty.  They  consist  of 
little  else  than  one  carding  and  fulling  mill  with  their  appenda- 
ges, and  the  caw-mill.  This  saw-mill  was  originally  built  as  a 
cover  to  the  wheel,  and  afterwards  machinery  was  placed  in  it 
for  sawing  lumber.  The  machinery  creates  the  great  difficulty. 
The  complainant  insists  that  the  lessor  was  bound  to  pay  for  all 
the  machinery  there,  whether  part  and  parcel  of  the  building  or 
loose  and  separated  from  it.  And  there  is  some  evidence  of  a 
portion  of  the  machinery  having  been  carried  away,  and  just 
before  the  expiration  of  the  lease  brought  back  and  piled  up, 
and  this  is  claimed  under  the  lease.  I  cannot  place  such  a  con- 
struction on  this  instrument.  The  machinery  contemplated  could 
have  been  nothing  beyond  such  as  is  permanent  and  essential  to 
the  building  itself  as  a  carding  or  fulling  mill,  with  liberty  to 
change  it  if  it  became  necessary.  It  was  no  doubt  seen,  that  it 
might  be  desirable  to  change  the  course  of  business,  and  if  so, 
they  had  a  right  to  adapt  it  accordingly,  and  then  the  landlord 
was  to  pay  for  the  machinery  thus  substituted.  The  buildings 
as  erected,  may  therefore  be  properly  valued,  with  their  perma- 
nent fixtures,  but  nothing  that  is  moveable.  I  know  it  is  diffi- 
cult to  arrive  at  certainty  as  to  the  right  limit  in  ascertaining 
what  is  permanent  and  what  not,  but  that  arises  from  the  char- 
acter of  the  covenants.  It  was  at  best  a  hard  bargain  on  the 
part  of  the  landlord,  but  to  declare  him  liable  for  any  thing  and 
every  thing  which  may  be  termed  machinery,  might  bring  on 
him  utter  ruin.  I  know  but  one  method,  and  that  is,  to  consider 
the  different  items  in  the  master's  report,  and  from  the  evidence 
in  the  cause  and  the  agreement,  make  such  allowance  as  shall 
seem  to  be  most  agreeable  to  justice:  and  I  am  fully  aware  that 
in  so  doing  we  cannot  arrive  at  as  much  certainty  as  we  could 
desire. 

The  first  item  in  Schedule  A.  No.  1,  is  for  the  wood-work  of 
the  buildings,  five  hundred  dollars.  This  item  I  shall  not  dis- 
turb. Though  impressed  that  it  is  a  liberal  allowance,  yet  it  is 
warranted  by  the  evidence,  and  the  buildings  are  a  fair  subject 
of  charge.  The  second  item  is  for  mill-wright  work  and  gear 


APE1L  TERM,  1841.  395 

Berry  T.  Ex'ra  of  Van  Winkle. 

ing,  three  hundred  dollars.  This  item  should  bo  reduced,  find 
I  shall,  from  considering  the  evidence,  place  it  at  two  hundred 
dollars.  There  can  be  nothing  more  uncertain  than  estimating 
mill-wright  work  by  the  lump.  The  third  item,  for  screws  and 
box,  &c.  seventy-four  dollars  and  sixty-three  cent?.  T  reject  alto- 
gether. The  fourth  item,  of  one  hundred  and  forty-three  dol- 
lars and  forty-two  cents,  is  reduced  to  one  hundred  dollars.  The 
fifth  item,  of  fifty  dollars  and  seventy-two  cents,  is  disallowed ; 
and  the  sixth  item,  of  two  hundred  dollars,  is  reduced  to  one 
hundred  dollars.  Tliis  last  item,  of  two  hundred  dollars,  for 
etonc  wall,  <fec.  I  have  had  some  doubts  whether  by  the  agree- 
ment any  charge  can  be  made  for.  The  stone  was  certainly  to 
be  found  by  the  lessor,  but  at  all  events,  the  first  item  for  the 
building,  with  one  hundred  dollars,  is  sufficient  to  cover  any 
claim  on  this  account.  This  valuation  will  give  the  complain- 
ant for  his  improvements,  cliargeable  against  the  defendants  at 
the  expiration  of  the  lease,  on  the  7th  of  March,  1835,  the  sum 
of  nine  hundred  dollars,  with  interest  from  that  date ;  and 
from  the  best  judgment  in  my  power  to  make,  from  a  case 
BO  complicated  and  perplexed,  I  believe  it  to  be  as  much  as 
justice  between  man  and  man  will  authorize  the  court  in  al- 
lowing. 

The  master's  report  as  contained  in  Schedule  A.  No.  2,  is 
right,  except  as  to  the  mode  of  calculating  interest.  By  casting 
interest  upon  the  amount  of  rent  due  up  to  the  7th  of  March, 
1835,  and  then  on  the  whole  amount  to  the  date  of  the  order, 
interest  has  been  cast  upon  interest.  This  must  be  corrected. 
The  amount  of  rent,  with  interest,  should  be  deducted  from 
the  amount  allowed  the,  complainant  for  liis  compensation  at 
the  expiration  of  the  lease,  and  interest  calculated  on  the  bal- 
ance. 

By  this  result  the  complainant's  exceptions  are  overruled,  ex- 
cept the  fifth,  which  relates  to  compound  interest,  which  is  al- 
lowed. Of  the  defendant's  exceptions,  the  second,  third,  fourth, 
fifth,  sixth,  eigth,  tenth,  and  thirteenth,  aro  sustained;  tho 
first,  seventh,  ninth,  eleventh,  and  twelfth,  are  overruled. 


396  CASES  IN  CHANCERY, 

Berry  v.  Ex'rs  of  Van  Winkle. 

The  case  must  be  referred  back  to  the  master  to  restate  the 
account,  according  to  this  opinion,  unless  the  counsel,  to  save 
that  expense,  shall  agree  on  the  calculation. , 


HORATIO  ELY  v.  JOHN  PEBRINE,  junior. 

A  refusal  by  the  sheriff  to  deliver  a  deed  to  the  purchaser  at  a  sheriff's  Bale, 
•when  rightfully  demanded,  will  not  absolve  the  purchaser  from  his  obliga- 
tion to  comply  with  his  contract,  if  after  such  refusal  by  the  sheriff  the  pur- 
chaser  offer  to  accept  the  deed. 

Where  (he  complainant's  mortgage  covers  several  parcels  of  land,  which  are 
covered  by  subsequent  incumbrancos,  the  decree  may  direct  the  whole  of 
the  property  to  be  sold,  and  the  proceeds  applied  to  satisfy  as  well  the  sub- 
sequent incumbrances  as  the  mortgage  of  the  complainant ;  and  although 
the  complainant's  mortgage  is  satisfied  by  the  sale  of  part  of  the  premises, 
the  sheriff  may  proceed  to  a  sale  of  the  remainder  to  satisfy  subsequent  in- 
cumbrances. 

But  if  any  of  the  defendant's  mortgages  cover  more  property  than  the  com- 
plainant's mortgage,  the  decree  cannot  direct  a  sale  of  that  part  of  the  pre- 
mises not  covered  by  the  complainant's  mortgage. 

Tac  docree  must  not  go  beyond  the  relief  prayed  in  the  bill,  and  that  is  con- 
fined to  a  foreclosure  and  sale  of  the  premises  Described  in  the  bill. 

Waere  the  decree  and  execution  are  against  the  wife  of  tho  mortgagor,  and  it 
afterwards  proves  that  her  right  in  the  mortgaged  premises  is  not  released, 
a  specific  performance  will  not  be  decreed,  although  the  property  was  sold 
subject  to  all  legal  prior  iucumbranccs. 

T'ae  property,  under  such  circumstances,  (to  entitle  the  sheriff  to  a  decree 
against  tho  purchaser  for  a  specific  performance,)  should  be  sold  with  a  dis- 
tinct recognition  of  the  dower  right  of  the  wife  of  the  mortgagor. 

A  decree  for  specific  performance  will  never  be  made,  unless  substantial  jus- 
tice is  done  thereby,  but  the  parties  will  be  left  to  their  remedies  at  law. 

THE  bill  was  filed  by  the  complainant,  to  enforce  the  specific 
performance  of  a  contract  made  by  the  defendant  for  the  purchase 
of  a  farm,  sold  by  tho  complainant  as  late  sheriff  of  the  county 
of  Monrnouth,  upon  an  execution  issued  out  of  this  court.  It 
appears  by  the  bill,  that  a  deed  had  been  tendered  by  the  com- 


APRIL  TERM,  1841.  397 

j 

Ely  v.  Perrine 

plainant,  which  the  defendant  refused  to  accept.  It  also  appears 
that  the  defendant  had  paid  a  part  of  the  consideration  money  to 
the  complainant,  and  that  after  refusing  to  accept  the  deed,  the 
defendant  had  commenced  a  suit  at  law  against  the  complainant 
to  recover  back  the  money  so  paid.  The  bill  prays  a  decree  for 
specific  performance,  and  also  an  injunction  to  restrain  the  suit 
at  law. 

The  grounds  relied  upon  in  the  answer  for  the  dissolution  of 
the  injunction,  appear  in  the  opinion  of  the  chancellor. 

The  cause  came  on  for  final  hearing,  upon  the  pleadings  and 
proofs. 

Vrederiburg,  for  complainant,  cited  Rodman  v.  Zilley  Sax- 
ton,  320  ;  1  Fonblanque,  154. 

J.  S.  Green,  for  defendant,  contra,  cited  1  Mad.  Chan.  Prac. 
284,  286,  320 ;  6  John.  Chan.  R.  225,  as  containing  the  rule 
by  which  courts  of  equity  are  governed  in  decreeing  a  specific 
performance. 

If  the  vendor,  by  the  day  fixed  for  delivering  the  deed,  does  not 
show  a  clear  title,  the  purchaser  is  discharged :  4  Taunton,  334. 

A  purchaser  will  be  discharged  from  his  contract  for  an  error 
in  the  decree  :  Lechmere  v.  Brazier,  2  Jac.  and  Walker,  28G ; 
Roffcy  v.  Shallcross,  4  MaddocKs  Rep.  227. 

The  complainant  should  show  a  full  performance,  or  readiness 
to  perform,  on  his  part :  1  Peters'  Rep.  463 ;  2  Green,  447. 

The  sheriffs  deed  was  altered  after  its  execution,  and  thereby 
made  void  :  2  Green,  178,  583 ;  12  Eng.  Com.  Law,  129. 

The  complainant  varied  his  agreement :  1  Mad.  Chan.  Prac. 
323  ;  Saxton,  320.  lie  was  guilty  of  laches :  1  Mad.  Chan. 
Prac.  327,  330. 

The  premises  have  been  changed  and  depreciated  since  tho 
purchase :  1  Mad.  Chan.  Prac.  336. 

/.  IT.  Williamson,  for  defendant.  The  sheriffs  deed  wa* 
defective,  in  the  recital  of  the  execution,  and  in  the  descriptor 


398  CASES  IN  CHANCERY, 

Ely  v.  Perrine. 

of  the  land.  The  decree  itself  is  erroneous.  The  court  will 
not  compel  a  party  to  take  a  defective  title  :  4  Mad.  Rep.  227, 
122  ;  1  Cond  Eng.  Chan.  Rep.  587 ;  2&?A.  and  Lef.  737. 

Vrederiburg,  in  reply. 

THE  CHANCELLOK.  The  complainant,  as  sheriff  of  Mon- 
mouth,  on  the  16th  of  March,  1840,  by  virtue  of  an  execution 
issued  out  of  this  court,  sold  a  farm  to  the  defendant  at  public 
sale,  for  eight  thousand  and  five  dollars.  By  the  terms  of  sale, 
which  were  in  writing,  the  purchase  money  was  to  be  paid  and 
the  deed  delivered,  on  the  26th  of  the  same  month  of  March,  at 
an  hour  and  place  specified ;  and  these  terms  were  known  to  tho 
purchaser,  for  he  acknowledges  in  writing  on  the  back  of  them, 
that  he  was  the  purchaser,  and  was  to  pay  the  money  and  take 
a  deed  agreeably  to  said  conditions.  The  purchaser  refuses  to 
comply  with  the  terms  of  sale,  declaring  himself  absolved  from 
all  obligation  to  perform  his  contract ;  and  this  bill  is  filed  by  the 
sheriff  to  compel  a  specific  performance.  The  defendant  sets  up 
many  reasons  why  the  contract  should  not  be  enforced,  which  I 
shall  consider  in  their  order. 

lie  alleges,  first,  that  the  sheriff  refused  to  give  him  a  deed 
when  demanded,  and  by  that  act  released  him  from  his  contract. 
Upon  this  part  of  the  case  there  is  considerable  evidence,  and  as 
it  must  have,  in  any  result  to  which  I  may  come,  more  or  less 
bearing  upon  the  responsibilities  of  the  sheriff,  it  deserves  to  be 
well  considered.  By  the  written  terms  of  the  sale,  and  which, 
as  I  have  stated,  the  purchaser  was  fully  apprised  of,  the  money 
was  to  be  paid  and  the  deed  delivered  on  the  26th  of  March.  On 
that  day  the  sheriff  attended  with  the  deed,  and  tho  defendant 
also  attended,  but  declared  himself  unable  to  pay  all  the  money, 
and  the  sheriff  finally  received  from  him  one  hundred  and  fifty 
dollars.  The  first  default  was  clearly  on  the  part  of  the  defend- 
ant, for  had  lie  been  ready  then  there  can  be  no  doubt  the  busi- 
ness would  have  been  settled  and  all  further  trouble  saved.  It  is 
stated  by  the  defendant,  that  he  did  not  expect  at  the  time  of  the 


APPJL  TERM,  1841.  390 

Ely  v.  Pcrrino. 

purchase  to  pay  all  the  money  on  the  2Cth  of  March,  the  time 
sp'scrmcd  in  the  conditions  of  sale,  and  that  the  sheriffs  father, 
xvho  had  formerly  been  sheriff,  and  was  attending  as  the  ad- 
viser of  his  son  at  the  sale,  told  him  that  his  son  would  allow 
him  sixty  days  to  pay  the  purchase  money.  It  does  not  appear, 
however,  that  the  sheriff  ever  authorized  his  father  to  make  such 
a  declaration,  and  the  father,  in  his  examination,  does  not  pro- 
tend that 'ho  was  so  authorized.  It  was  nothing  more  than  a 
suggestion,  unauthorized  on  his  part,  that  as  his  son  could  not 
be  amerced  short  of  sixty  days,  he  would  allow  the  purchaser 
that  time  to  fulfil  his  contract.  "Without  showing  this  extension 
for  the  time  of  payment  from  the  sheriff  himself,  or  made  by  his 
authority,  and  especially  as  afterwards  the  purchaser  signed  a 
written  stipulation  to  pay  the  money  on  that  day,  the  defendant 
must  stand  in  the  position  of  having  made  the  first  default  in  the 
fulfilment  of  this  contract.  On  the  31st  of  March,  the  defendant 
paid  the  sheriff  four  thousand  dollars  more  on  account  of  the  pur- 
chase, and  on  the  Cth  of  April  produced  a  receipt  from  one  of 
the  parties  entitled  to  about  three  thousand  dollars  of  the  money 
that  the  purchaser  had  satisfied  his  demand,  and  tendered  tho 
balance  of  the  purchase  money  to  the  sheriff,  which  he  declined 
receiving,  because  a  notice  had  been  served  upon  him  by  Dr. 
Woodhull,  the  mortgagor,  not  to  give  the  purchaser  a  deed. 
This  notice  from  the  mortgagor,  it  seems,  embarrassed  the  sheriff, 
and  although  well  disposed  to  do  his  duty,  yet  desiring  to  avoid 
any  personal  difficulty,  he  declined  at  that  time  giving  tho  pur- 
chaser a  deed  unless  he  would  indemnify  him  against  loss  or 
damage  by  reason  of  the  notice  he  had  received  from  the  mort- 
gagor. This  was  an  extraordinary  demand  on  a  purchaser,  that 
he  should,  after  paying  for  liis  purchase,  indemnify  tho  sheriff 
for  his  act  in  selling  the  property.  This  the  defendant  very  pro- 
perly declined  doing,  and  had  he  at  that  time  demanded  his  deed, 
declaring  that  unless  then  delivered  he  should  decline  receiving  it 
afterwards,  and  persisted  in  that  course,  it  would  have  presented 
a  very  serious  question  whether  he  was  not  absolved,  by  the  con- 
duct of  the  sheriff,  from  all  further  obligation  to  perform  his  con- 


4DO  CASES  IN  CHANCERY, 

Ely  v.  Perrine. 

tract.  But  this  was  not  the  course  pursued  by  the  defendant ; 
for  on  the  9th  of  April  he  Trent  again  to  the  sheriff,  and  again 
demanded  from  him  either  a  deed  or  the  purchase  money  which 
he  had  paid  him.  They  went  together  to  the  county  town,  and 
there  continued  chaffering  until  the  sheriff  (probably  advised  by 
counsel  so  to  do)  tendered  the  deed  to  the  defendant,  who  then 
refused  to  take  it,  not  because  it  was  denied  him  on  the  Cth,  but 
because  there  was  a  mistake  in  the  description  of  the  property. 
The  sheriff  then  corrected  the  mistake  in  the  deed,  but  as  alleged 
by  the  defendant,  did  not  reacknowledge  it,  and  the  defendant 
from  this  time  declined  receiving  any  thing  but  his  money. 
From  this  time  it  is  manifest,  from  some  cause,  the  purchaser 
did  not  wish  to  take  the  title.  I  cannot  suppose  the  error  in  the 
deed  to  have  been  the  substantial  difficulty,  or  it  would  have  been 
rectified,  but  was  rather  sought  by  the  defendant  as  an  excuse 
for  declining  to  take  the  deed.  In  all  the  earlier  stages  of  the 
business,  the  purchaser  wished  to  have  the  title,  but  at  this  time 
and  afterwards  it  was  manifest,  from  some  cause,  his  views  had 
changed.  Then  the  parties  commenced  suits  against  each  other 
in  the  supremo  court ;  the  sheriff  for  breach  of  covenant,  and 
the  defendant  for  his  money.  Upon  these  facts,  I  have  come  to 
this  conclusion,  that  while  the  sheriff  was  guilty  of  indiscretion 
from  his  fears  of  the  notice  he  had  received  from  Dr.  "VVoodlmll, 
yet  as  the  defendant  made  the  first  default  on  the  2Gth  of  March, 
which  led  to  all  the  difficulty,  and  as  the  refusal  to  give  the  title 
on  the  Cth  of  April,  was  waived  by  the  course  of  the  defendant 
on  the  9 tli,  in  again  giving  the  sheriff  his  option  to  give  the  title 
if  ho  thought  proper,  and  as  he  then  did  tender  him  the  title, 
there  is  nothing  in  the  case  to  absolve  the  defendant  from  com- 
plying with  his  contract,  unless  it  be  from  the  defective  character 
of  the  deed  itself.  That  the  deed,  if  altered,  should  have  been 
reacknowledged  by  the  grantor,  is  certain ;  but  as  that  is  mani- 
festly an  omission  arising  from  a  mistaken  impression  on  the 
sheriff's  mind  that  it  was  unnecessary,  I  should  feel  myself  au- 
thorized, were  that  the  only  remaining  obstacle,  to  direct  a  spe- 
cific performance  upon  anew  deed  being  executed  in  conformity 


APRIL  TERM,  1841.  401 

Ely.  v.  Perrine. 

to  law..  On  the  13th  of  July  the  deed,  it  would  appear,  was  again 
tendered  to  the  defendant,  and  was  then  rcacknowledged. 

2.  The  remaining  objections  go  to  the  form  of  the  decree,  and 
the  important  fact  that  Mrs.  "Woodhull,  the  wife  of  the  mortga* 
gor,  never  acknowledged  the  mortgage,  and  is,  therefore,  not 
barred  of  her  dower.  I  do  not  agreee  that  the  decree  is  defective 
in  the  particulars  insisted  on  by  the  defendant's  counsel.  Tho 
complainant's  mortgage  covered  several  tracts  of  land,  and  the 
court  required  that  all  the  parties  in  interest  having  liens  upon 
any  portion  of  that  land,  should  be  brought  before  the  court. 
The  decree  very  properly  settles  the  priorities  of  the  various  liens, 
and  directs  the  whole  land  to  be  sold  and  payment  to  be  mado 
according  to  the  rights  of  the  parties.  The  complainant's  mort- 
gage covered  all  the  land  sold,  and  having  all  persons  in  interest 
in  court,  I  sec  no  other  course  than  to  decree  the  sale  of  the 
whole  property,  and  out  of  the  proceeds  to  pay  the-eeveral  de- 
mands against  it.  The  complainant's  bill  seeks  a  foreclosure 
and  sale  of  all  the  property,  and  he  was  required  to  bring  eve- 
ry subsequent  mortgagee  or  judgment  creditor  into  court  ;  and 
for  what  purpose  ?  That  they  may  present  their  claims,  and  the 
court,  in  one  suit,  and  by  one  decree,  direct  them  to  be  liqui- 
dated out  of  the  property.  This  is  the  universal  practice  of  the 
court,  and  I  can  see  no  other  course  of  procedure.  Suppose,  as 
contended  in  this  case,  the  sheriff  should  stop  his  sale  if  the 
complainant's  mortgage  is  satisfied  out  of  the  first  lot  sold,  what 
is  to  become  of  the  other  parties  ?  TTho  is  to  pay  the  costs  they 
have  been  put  to  ?  Such  a  course  would,  I  think,  be  productive 
of  great  confusion  and  endless  expense.  If  any  of  the  defend- 
ants' mortgages  are  broader  than  the  complainant's  (cover  more 
property  than  his,)  then,  certainly,  the  decree  cannot  go  beyond 
a  eale  of  the  property  contained  in  the  complainant's  mortgage. 
The  decree  must  not  go  beyond  the  relief  prayed  in  the  bill,  and 
that  is  confined  to  a  foreclosure  and  sale  of  the  property  described 
in  the  complainant's  mortgage.  The  decree  is,  therefore,  as  I 
think,  right  in  this  particular,  and  the  sheriff  had  authority  to 
sell  the  property  in  question.  But  it  seems  from  an  inspection  of 
52 


402  CASES  IN  CHANCERY, 

Ely  v.  Perrine. 

the  record  of  the  decree  under  which  this  sale  was  made,  that 
the  mortgage,  though  signed  by  Mrs.  "Woodhull,  the  mortgagor's 
wife,  was  never  acknowledged  by  her ;  and  yet  the  decree  is 
drawn  up  in  the  usual  form,  against  her  as  well  as  her  husband, 
as  if  her  rights  were  extinguished  by  the  decree.  This  is  a 
difficulty  in  a  most  important  particular,  and  is  distinctly  alleged 
in  the  answer  as  in  the  way  of  the  complainant's  obtaining  the 
relief  he  asked,  and  which  I  have  not  been  able  to  get  over. 
Can  this  decree  bar  the  dower  right  of  Mrs.  "Woodhull  ?  I  can- 
not see  how  it  can.  She  is  not  barred  by  any  acknowledgment, 
and  I  can  see  no  reason  why,  in  the  event  of  her  husband's 
death,  she  might  not  at  once  demand  and  recover  her  dower. 
This  is  a  defect  in  the  title,  discovered,  as  I  suppose,  since  the 
sale  ;  for  the  execution  appearing  to  be  against  Mrs.  "Woodhull 
as  welLas  her  husband,  it  was  calculated  to  deceive  a  purchaser 
and  to  lead  him  to  conclude  that  her  right  of  dower  was  barred. 
Shall  I  then  interpose  the  extraordinary  aid  of  this  court,  when 
a  defendant  presents  me  with  an  objection  of  this  substantial 
character  ?  He  complains  that  the  title  is  defective.  It  is  true 
that  by  the  articles  of  sale  the  property  was  set  up  subject  "  to 
all  legal  prior  incurnbrances."  Yet  who  could  have  imagined 
that  the  claim  of  one  of  the  very  defendants  was  not  extinguish- 
ed by  the  suit  ?  The  property  should  have  been  sold  with  a  dis- 
tinct recognition  of  the  dower  right  of  Mrs.  "Woodhull.  Many 
men  would  not  buy  property  with  such  a  right  unextinguished, 
and  particularly  if  it  be  proposed  to  make  any  valuable  improve- 
ments. The  cases  are  not  unf  requent  where  the  purchaser  has 
been  discharged  from  an  error  in  the  decree,  and  that  on  motion  : 
Lechmcre  v.  Brazier,  2  Jacobs  and  Walker,  286  ;  Roffey  v. 
Shattcross,  4  Haddocks  Rep.  227 ;  and  if  so,  the  case  is  much 
stronger  when  set  up  against  the  relief  asked  on  a  bill  for  a  spe- 
cific performance.  The  principle  is  well  settled,  that  a  decree 
for  a  specific  performance  will  never  be  made,  unless  substantial 
justice  will  bo  advanced  thereby.  The  parties  will  be  left  to  their 
remedies  at  law :  Seymour  v.  Delancey,  6  Johns.  Chan.  220 ; 
jRodman  v.  Zittey  and  others,  Saxton,  325 ;  Miller  v.  Chct- 


APRIL  TERM,  1841.  403 

Ely  v.  Perrine. 

wood  and  others,  ante,  199.  Here  it  is  manifest  a  wrong  would 
be  done,  and  I  must  decline  upon  this  last  ground  alone  to  grant 
the  complainant  that  aid  to  which  he  would  otherwise  have  been 
entitled. 

As  the  prayer  of  the  bill  is  denied  upon  a  defect  in  the  title 
alone,  without  the  laches  of  the  sheriff,  I  shall  order  the  bill 
dismissed  without  costs. 

Decree  accordingly. 

...          •  "\ 

CITED  in  BOVOM  v.  Bitter,  11  0.  E.  Gr.  458.  ". 

[The  following  note  is  appended  to  the  decree,  and  though  it 
contains  no  judicial  opinion,  is  published  as  embodying  the  views 
of  the  chancellor  in  regard  to  the  course  proper  to  be  pursued  by 
the  parties : — ] 

"  This  is  as  far  as  I  am  authorized  to  go  judicially,  but  as  this 
is  an  amicable  suit,  and  a  request  was  made  on  the  argument 
that  I  would  settle  the  whole  case  and  put  an  end  to  further 
controversy,  I  have  no  objection  to  stating  informally,  that  it  ap- 
pears to  me  to  be  one  of  those  cases  in  which  exact  justice  cannot 
be  done  to  one  partywithout  imposing  unjust  terms  upon  another, 
and  therefore  necessity  requires  that  we  should  do  that  which 
will  be  nearest  accomplishing  the  great  end  of  justice,  that  of  do- 
ing right  to  all.  I  think  the  sheriff  should  return  the  money  to 
the  purchaser,  but  without  interest  unless  he  has  put  it  to  use, 
and  if  so  then  with  interest  for  that  time.  The  suits  in  the  su- 
preme court  should  be  discontinued  without  costs,  and  the  sher- 
iff advertise  and  sell  the  premises  over,  distinctly  and  openly  de- 
claring at  the  time  of  sale  that  they  are  sold  subject  to  the  right 
of  dower  of  Mrs.  Woodhull" 


404:  CASES  IN  CHANCERY. 


JESSE  "VLIET  v.  THOMAS  LOWMASOIS  and  GEORGE  K. 
LOWMASON. 

Where  the  defendant  against  -whom  the  gravamen  of  the  charge  rests  has  fully 
answered  the  complainant's  bill,  the  injunction  will  bo  dissolved,  although 
other  defendants  have  not  answered. 

THE  complainant  filed  liis  bill  in  this  cause  to  obtain  an  in- 
junction to  restrain  proceedings  at  law  by  Thomas  Lowmason, 
one  of  the  defendants,  against  the  complainant  and  George  K. 
Lowmason,  the  other  defendant,  for  the  recovery  of  a  promisso- 
ry note  given  by  them  to  the  said  Thomas  Lowmason,  and 
which  it  was  insisted  in  the  bill  that  the  payee  was  not  entitled 
in  equity  to  recover  against  the  complainant.  The  defendant 
Thomas  Lowmason,  by  his  answer,  denied  the  whole  equity  of 
tho  bill.  No  answer  was  filed  by  George  K.  Lowmason,  the 
other  defendant. 

The  cause  was  heard  upon  motion  to  dissolve  the  injunction, 
on  bill  and  answer. 

Wilson,  for  complainant,  insisted  that,  although  one  of  the 
defendants,  by  his  answer,  denied  the  whole  equity  of  the  bill, 
tho  injunction  could  not  be  dissolved  unless  an  answer  was 
filed  by  all  the-defendants. 

Vroom,  contra. 

THE  CHANCELLOR.  Thomas  Lowmason,  whose  rights  alono 
arc  affected  by  the  injunction,  has  fully  answered,  denying  tho 
equity  of  the  complainant's  bill.  The  other  defendant  is  one  of 
the  makers  of  the  note  upon  which  the  action  is  brought,  to  re- 
strain which  tho  injunction  issued.  He  can  have  no  interest  in 
answering  the  bill,  nor  can  his  answer  avail  the  complainant. 
The  general  rule  is,  that  where  there  are  several  defendants,  all 
must  answer  before  the  injunction  will  be  dissolved ;  but  to  this 
there  are  exceptions.  Where  the  defendant  against  whom  tho 


APRIL  TERM,  1841.  405 


VI  et  v.  Lowmason  et  aL 


gravamen  of  the  charge  rests  has  fully  answered,  the  injunction 
will  be  dissolved,  although  no  other  defendant  has  answered.* 
Injunction  dissolved. 

»  See  ace  r  1.  Deptystcr  v.  Gravet,  2  John.  Chan.  R.  148;  Jonet  v.  MagiM,  1  Eland.  ICO; 
Stewart  v.  Barry,  Ibid,  192;  Williams  v.  Hall,  Ibid.  124;  Chaplin  v.  Betty,  Ibid  197;  Forg 
r.  Ottcw,  Ibid  199;  Faieman  v.  GiUespy,  5  Pa%«,  112;  Sigffim  v.  Woodward,  1  Hop.  G4S; 
NobUv.  Wilton,  1  Pa»0«,  104;  1  Ho/man"»  Ch.  Pr.  SCO 

CITED  in  Adams  v.  ZTu</.  <7o.  2?£.  2 


HKNKY  CHESTEE  v.  JOSEPH  R.  KIKG  and  others. 

A  mor^gigor  who  has  parted  with  all  his  interest  in  the  mortgaged  premise? 
is  a  pi-vper,  though  not  a  necessary  party  to  a  bill  for  foreclosure. 

THE  complainant  filed  his  bill  for  the  foreclosure  of  a  mort- 
gage given  by  Joseph  R.  King,  one  of  the  defendants,  to  tho 
complainant.  The  bill  states,  that  after  the  execution  of  tho 
mortgage,  the  mortgagor  conveyed  the  mortgaged  premises  in 
fee  to  George  Gaskill,  who  is  also  a  defendant  in  the  bl  I.  To 
this  bill  the  defendant  demurred,  assigning  for  cause  of  demur- 
rer, that  it  appearing  upon  the  face  of  the  bill  that  the  mortgag- 
er had  parted  with  all  his  interest  in  the  mortgaged  premises,  he 
is  not  a  proper  party  to  the  bilL 

JI.  IF.  Greeny  in  support  of  the  demurrer. 

A  mortgagor  who  has  assigned  his  interest  in  the  equity  of 
redemption,  is  not  a  necessary  party  to  a  bill  to  f  orclose :  Yree- 
land  v.  Loubat,  ante,  104 ;  1  Pow.  on  MorL  405,  a.  note  2. 

In  case  of  the  death  of  the  mortgagor,  on  a  bill  for  foreclosure, 
it  is  not  necessary  to  make  the  executor  or  administrator,  but  the 
heir,  a  party.  The  complainant  need  only  muke  him  a  party 
who  has  the  equity  :  Edwards  on  Parties,  91,  s.  41 ;  Hindis 
C!t.  Pr.  9  ;  Knight  v.  Knight,  3  P.  W.  331,  note  a ;  Galton 


400  CASES  IN  CHANCERY, 

Chester  v.  King  et  al. 

v.  Hancock^  2  Atlt.  435  ;  Cumberland  v.  Codrington,  3  John. 
Chan.  R.  2o2 ;  Howes  v.  Wadham,  Hep.  Temp.  Hard.  191). 

A  mere  witness,  against  whom  there  can  be  no  relief,  ought 
not  to  be  made  a  party :  Edwards  on  Parties^  93,  6'.  44 ;  Fen. 
ton  v.  Huglies,  7  Vesey,  287. 

In  New- York,  when  the  equity  of  redemption  is  sold  at  sheriff's 
sale,  on  a  bill  filed  to  foreclose,  the  mortgagor  must  be  made  a 
party,  because  he  has  a  year  in  which  to  redeem :  Halloclc  v 
Smith,  4  John.  Chan.  7?.  650  ;  Edwards  on  Parties,  96,  s.  49. 

The  mortgagor  or  his  heir  is  a  necessary  party  to  a  bill  to  f  oro- 
closo  by  the  mortgagee,  because  he  has^  an  interest  in  the  equity 
of  redemption :  3  Powell,  963,  C.I 

Tlio  executor  of  the  mortgagor  need  not  be  a  party.  The 
bill  being  only  to  foreclose  the  equity,  the  plaintiff  need  only 
make  him  a  party  that  has  the  equity,  viz.  the  heir  or  devisee : 
3  Powell,  968-9,  note  L.  and  note  M\  Duncomb  v.  Hansley, 
3  P.  W.  333,  n. 

All  the  cases  proceed  on  the  ground  that  he  alone  should  be 
made  a  party  who  has  an  interest  in  the  equity  of  redemption, 
whether  he  be  the  mortgagor,  or  his  heir  or  devisee,  or  a  pur- 
chaser. 

If  the  mortgagor  having  no  interest  in  the  morgaf/d  premis- 
es, is  not  a  necessary  party,  he  is  not  a  proper  party.  !Jo  stands 
in  the  light  of  a  stranger,  and  can  with  no  more  ro^riety  be 
made  a  party  than  any  third  person. 

If  an  improper  party  be  made  defendant,  he  ~j.?.f  demur : 
Fenton  v.  Hugfos,  7  Vesey,  287. 

Ein$ey,  contra. 

THE  CHANCELLOR.  The  mortgagor  "who  has  $?Aed  vvith  the 
equity  of  redemption  is  not  a  necessary  party  to  a  bill  for  foreclo- 
sure ;  but  if  the  complainant  thinks  proper  to  imto  him  a  party, 
he  lias  a  right  so  to  do,  and  the  bill  is  not  doumrrablo  for  that 
cause.  He  is  a  proper  party,  although  not  an  7/idispensablc  QUO, 
Demurrer  overruled. 

CITED  in  Wldttemore  v.  Coster,  3  ffr.  Gh.  438. 


APRIL  TERM.  1841.  407 


Hfizntr  C.  VAN  RIPER  v.  ROBERT  M.  "WILLIAMS  and  others. 

Where  a  mortgage  is  given  for  the  purchase  money  of  land,  conveyed  by  the 
mortgagee  to  the  mortgagor  \vith  covenant  against  incumbrasces,  if  it  ap- 
pear that  at  the  time  of  the  conveyance  the  premises  were  subject  to  a  prior 
iucumbrance ,  a  decree  of  foreclosure  will  net  be  made  upon  such  mortgage 
until  t-e  prior  incumbrance  is  satisfied,  or  the  piior  incumbrance  will,  by 
the  decree,  bo.  directed  to  be  first  paid  out  of  the  proceeds  of  the  sale,  and 
t  -o  Amount  deducted  from  the  sum  due  upon  the  mortgage. 

BILL  for  foreclosure  'of  a  mortgage,  given  by  Robert  M.  "Wil- 
liams and  Elizabeth  his  wife,  to  Henry  C.  Van  Riper  and  John 
Kelly,  junior,  dated  Cth  of  August,  1835,  to  secure  the  payment 
of  five  hundred  and  thirty-seven  dollars,  with  interest.  The  bill 
states,  that  on  the  10th  day  of  September,  183G,  Robert  M.  "Wil- 
liams made  a  declaration  of  trust  of  the  same  premises  in  favor 
of  Frances  S.  IIedden,wife  of  Zadock  Iledden,  thereby  declaring 
that  he  stood  seized  of  the  said  premises  in  trust  for  her :  and 
that  by  the  death  of  John  Kelly,  junior,  one  of  the  mortgagees, 
and  by  virtue  of  an  assignment  from  his  legal  representative,  tho 
entire  interest  in  the  said  mortgage  was  vested  in  the  complain- 
ant. 

Frances  S.  Iledden,  the  cestui  que  trust  named  in  the  bill, 
Vy  her  answer,  admits  the  bond  and  mortgage  as  set  forth  in  tho 
bill  of  complaint,  but  states  that  they  were  given  to  secure  part 
of  tho  purchas3  money  of  tho  mortgaged  premises,  which  wero 
sol.l  and  conveyed  by  the  said  mortgages  to  tho  said  Robert  M. 
Williams,  in  trust  for  the  said  Frances  S.  Iledden.  That  tho 
sail  deed  contained  the  usual  covenant  of  seizin,  and  also  a 
covenant  on  the  part  of  the  grantors  that  the  bargained  premises 
were  clear  of  all  incumbranccs,  except  a  mortgage  executed  by 
the  grantors  to  John  Zabriskie,  to  secure  the  payment  of  two 
hundred  and  fifty  dollars ;  but  that,  at  the  time  of  the  execution 
and  delivery  of  the  said  deed,  the  said  premises  were  also  sub- 
ject to  a  mortgage  given  by  the  grantors  to  Elizabeth  Gautier, 
to  sjcure  the  payment  of  one  hundred  and  eight  dollars,  dutoi 


408  CASES  IN  CHANCERY, 

Van  Riper  v.  Williams  et  al. 

the  28tli  of  June,  1834:,  and  duly  acknowledged  and  recorded ; 
and  that  the  said  mortgage  is  still  outstanding,  unsatisfied  and 
uncanceled.  The  answer  insists  that  no  decree  of  foreclosure 
should  be  made  upon  the  complainants'  mortgage  while  the 
mortgage  to  the  said  Elizabeth  Gautier  remains  unsatisfied,  and 
the  covenant  in  the  aforesaid  deed  against  incumbrances  vio- 
lated. 

The  cause  was  submitted  upon  the  pleadings  and  proofs. 

J.  D.  Miller,  for  complainant. 

L.  JD.  Hardcnbergli,  for  defendants. 

THE  CHANCELLOR.  As  the  mortgage  sought  to  be  foreclosed 
in  this  case,  was  given  to  secure  the  purchase  money  on  land 
sold  by  the  mortgagees,  with  covenants  of  seizin  and  against 
incumbrances,  and  it  turns  out  that  there  was  at  the  time  of  the 
conveyance  an  outstanding  mortgage  which  still  remains  an  in- 
cumbrance  upon  the  premises,  that  mortgage  must  be  first  re- 
moved before  a  decree  for  foreclosure  and  sale  can  in  equity  be 
ordered  ;  or,  so  much  of  the  proceeds  of  the  sale  as  may  be  ne- 
cessary for  that  purpose,  must  by  the  decree  be  directed  to  be 
applied  to  pay  off  and  satisfy  that  incumbrance,  and  the  amount 
so  applied  deducted  from  the  mortgage  debt  due  the  com- 
plainant. 

CITED  \s  White  v.  Stretch,  7  0  E*  Gr.  79:  Dayton  v.  Dusenbury,  10  C. 
E.  Or^Ul 


APRIL  TERM,  1841.  409 


JOHN  T.  "WOODITTLL  v.  ABBAIIAM  G.  KEAFIE,  Sheriff  of 
Montuouth  County,  and  JOHN  PEEKINE,  junior. 

A  mo' ion  to  dissolve  an  injunction  will  be  entertained  before  answer 
fV.cd.* 

Where,  by  the  conditions  of  a  sheriff's  sale,  it  is  provided  that  "  if  the  par- 
chaser  do  not  comply  with  the  conditions,  the  proper.'y  shallb?  resell,'1  tho 
sheriff  is  Lot  bound,  upon  afuiluroof  the  purchaser  to  comply  with  the 
conditions,  to  make  a  second  sale,  though  requested  so  to  do  by  the  defend. 
ant  in  execution. 

THE  bill,  filed  July  25th,  18-10,  seeks  relief  against  the  sale 
of  a  farm  of  the  complainant,  in  the  county  of  Monmouth,  made 
on  tho  23d  of  March,  1840,  by  Abraham  G.  Neafie,  sheriff  of 
said  county,  under  an  execution  issued  out  of  this  court,  upon  a 
decree  for  foreclosure  and  sale  of  the  mortgaged  premises.  The 
bill  is  filed  against  the  sheriff  and  tho  purchaser  at  the  sale,  and 
set  out  as  a  ground  for  relief,  1.  That  the  premises  were  adver- 

*  This  decision  was  made  before  tho  adoption  of  the  present  rules  of  court. 
The  rule  is  now  otherwise.  '•  No  motion  to  dissolve  an  injunction  before  an- 
swer shall  bo  entertained,  unless  tho  defendant  shall  show  good  cause  why  an 
answer  hath  not  been  put  in."  Rules,  ix.  ».  2. 

As  the  reporter  has  not  been  furnished  with  a  written  opinion  of  the  chan. 
cellor,  nor  with  the  briefs  of  counsel ,  the  grounds  of  tho  decision  in  the  above 
causo  car.not  bo  given.  A  court  of  chancery  will  entertain  a  motion  before  an- 
swer filed,  to  dissolve  an  injunction,  or  to  discharge  the  ordergrantiug  it,  where 
the  injunction  has  is&ued  irregularly,  or  where  the  complainant  Las  not  exer- 
cised due  diligence  in  prosecuting  his  suit,  or  has  omitted  to  sue  out  a  subpoena, 
or  to  hayo  it  dulyBsrved:  Elenonlnj.  (1st  Am.  od.)  C5;  Mtuzitsv.  RoJri- 
gutz,  1  Price's  Exc.  Rep.  92;  Deprysler  v.  Graves, "2  John.  Chan.  Rrp.  148; 
1  Huffman's  Ch.  Pr.  211,  360,  Ells' ed's  Dl<j.  178;  P.trktr  v.  Williams,  i 
Pavje,  439;  Corey  v.  Voorliies,  ante.  p.  5;  West  v.  Smith,  i  nte,  p.  309.  And 
*  defect  in  tho  injunction  will  be  cured,  and  irregularity  in  tho  complainant's- 
proceedings  waived,  by  filing  an  answer:  Djviilev.  Peacock,  Bernard,  27;  l-Jdtn 
on  Inj.  (It  Am.  ed.)  65;  Parker  v.  Williams,  4  Paye,  433;  IMtled's  Dig. 
2i2.  So  th«  defendant  may  move,  before  answer,  to  dissolve  an  injunction, 
on  the  ground  of  want  of  equity  in  the  bill:  Miniwrn  v.  Seymour,  4  John.  Cb. 
R.  173.  But  it  would  seem  to  be  contrary  to  the  course  of  adjudication,  both 
in  the  English  and  American  courts  of  chancery,  to  permit  a  motion  to  be 
made  to  dissolve  an  injunction  before  answer,  grounded  on  affidavits  denying 
53 


410  CASES  IN  CHANCERY, 


"VVoodhnil  v.  Neafie  et  al. 


tised  to  be  sold  between  the  hours  of  twelve  and  five  o'clock,  and 
that  no  particular  hour  was  designated  as  the  time  of  making 
the  said  sale.  2.  That  the  sale  was  conducted  in  an  unusual 
and  extraordinary  manner,  the  premises  having  been  struck  oft 
soon  after  the  hour  of  twelve,  whereby  many  persons  who  were 
desirous  of  purchasing  were  deprived  of  an  opportunity  of  making 
a  bid.  3.  That  the  conditions  of  the  sale  were  harsh  and  ri^o- 

o 

rous,  the  whole  of  the  purchase  money  being  required  within 
three  days  after  the  sale  ;  and  that  the  sheriff  refused  to  modify 
the  conditions,  although  requested  so  to  do  by  persons  desirous  of 
purchasing.  4.  That  owing  to  the  manner  in  which  the  sale 
was  conducted,  and  the  character  of  the  conditions,  the  premises 
were  sold  at  a  very  inadequate  price.  5.  That  by  one  of  the 
conditions  of  sale  it  was  provided,  that  if  tho  purchaser  did  not 
comply  with  the  conditions,  the  property  should  be  sold  a  second 
time,  and  if  it  brought  more  than  at  the  first  sale  the  purchaser 
was  not  to  be  benefited,  but  if  less  he  was  to  make  up  all  defi- 

the  allegations  of  the  complainant's  bill:  Snow  v.  Cameron,  1  Fjwl.  Exc.  Pr. 
282;  Eden  on  lr>j.  65,  (1st  Am.  ed.);  Rcadv.  Consequa,  4  Wash.  C.  C.  R  p. 
177.  Affidavits  cannot  bo  read  in  support  of  the  answer  on  a  motion  to  dis- 
solve, nor,  of  course,  can  ihcy  62  substituted  for  an  answ:r.  An  affidavit  of 
the  defendant  would  rob  tho  plaintiff  of  tho  benefit  of  exceptions:  1  Hoffman's 
Clian.  Pr.  361.  Nor  will  an  injunction  bo  dissolved  on  tho  affidavit  of  one 
•who  is  not  a  party:  Cliristmas  v.  Campbell,  1  Ilayw.  123;  Thompson  v.  Allen, 
2  Hayw.  151.  The  rtilo  is  thus  stated  by  chancellor  Williarr.son,  in  the  cnse  of 
Dallas  and  Carroll  v.  Jeffers:  When  on  injunction  is  granted,  and  a  motion 
made  to  disso'.va  it,  tho  defendant  must  rely  npo  i  tho  facts  stated  in  the  bill, 
and  cannot  bring  iu  affidavits  to  contradict  tho  bil1,  or  toprovo  that  the  plain- 
tiff has  by  assignment  divested  1  imself  of  h  s  i  terest;  ho  must  come  in  and 
answer:  llals'.ed's  Dig.  212.  T.  o  rule  proceeds  upon  tho  ground,  that  the 
court  will  not  dispen  o  with  tho  answer,  to  which  tho  complainant  is  entitled  j 
from  the  defendant:  Read  v.  Consequa,  4  Wash  C.  C.  Rep.  179;  unless  the 
complainant  waives  bis  right  to  an  answer,  when  it  is  competent  for  tho  de- 
fendant to  move  to  dissolve  the  injunction  upon  the  merits  disclosed  by  affida- 
vit; A  lor nev- General  v.  Nic'iol  16  Ves.  310;  Vlpin  v.  Morllock,  2  Meriv.  4.79. 
No  judicial  construction  lias  been  given  to  the  late  rule  of  court  above  cited, 
(Rules,  ix.  s.  2.)  It  is  presumed,  however,  that  it  will  be  held  to  apply  only 
to  cases  similar  to  the  case  reported  in  the  text,  where  tho  defendant  seeks  by 
affidavit  to  contradict  the  charges  in  the  bill,  or  to  establish  bis  claim  to  a 
dissolution  of  the  injunction. 


APEIL  TERM,  1841. 


Woodhull  v.  Neafio  et  al. 


ciency  •with  the  costs  of  the  second  sale ;  that  the  purchaser  did 
fail  to  comply  with  the  conditions,  yet  the  sheriff,  although  re- 
quested by  the  complainant  to  resell  the  property,  in  compliance 
with  the  conditions  of  the  first  sale,  refused  so  to  do,  but  after- 
wards deli vered  a  deed  to  the  purchaser.  The  bill  further  states, 
that  an  action  of  ejectment  had  been  commenced  by  the  pur- 
chaser for  the  recovery  of  the  premises ;  and  prays  that  an  in- 
junction may  issue  to  restrain  further  proceedings  in  said  action ; 
that  the  sheriffs  sale  may  be  set  aside,  the  deed  to  the  purchaser 
delivered  up  and  cancelled,  and  a  new  sale  ordered.  An  injunc- 
tion issued,  pursuant  to  the  prayer  of  the  bill. 

!N"o  answer  was  filed  by  the  defendants,  but  affidavits  were 
taken  on  the  part  of  the  defendants  to  disprove  the  charges  con- 
tained in  the  bill.  The  cause  was  brought  to  hearing  on  motion 
to  dissolve  the  injunction  upon  the  bill  and  affidavits  taken  on 
the  part  of  the  defendants. 

The  only  questions  involved  in  the  chancellor's  decision, 
were, 

1.  Whether  a  motion  to  dissolve  the  injunction  would  be  en- 
tertained before  answer  filed. 

2.  "Whether  the  sheriff  was  bound  by  the  conditions  of  hia 
sale,  upon  a  failure  on  the  part  of  the  purchaser  to  comply  with 
the  conditions,  to  resell  the  property  on  the  request  of  the  de- 
fendant in  execution. 

THE  CHANCELLOR  dissolved  the  injunction,  holding  that  the 
injunction  might  be  dissolved  without  answer ;  and  that  it  was 
optional  with  the  sheriff,  after  the  failure  of  the  purchuser  to 
cemply  with  the  conditions  of  sale,  either  to  make  a  resale  of  tho 
property,  or  to  execute  the  first  sale. 
Injunction  dissolved. 

CITED  in  Shann  v.  Jones,  4  C.  E.  Gr.  254.  < 

•'.  .  f 
*>.-.,     . 


4:12  CASES  m  CHANCERY, 


HALMAon  I.  VAN  "WAGGONEB  v.  JOSEPH  MoEwEN  and 

others. 

Where  a  mortgage  is  given  to  secure  the  purchase  money  of  land,  an  alleg->- 
tion  of  an  outstanding  title  against  the  land  purchased,  is  no  objection  to 
a  decree  of  foreclosure,  aliter,  if  the  purchaser  is  evicted  or  an  ejectment 
actually  commenced  against  him. 

BILL  for  the  foreclosure  of  a  mortgage,  given  by  Joseph 
McEwen  and  wife  to  the'complainant,  to  secure  the  payment  of 
a  bond  for  eleven  hundred  dollars.  The  defendant,  Joseph 
JkfcEwen,  by  his  answer,  admits  the  bond  and  mortgage  as  set 
out  in  the  complainant's  bill ;  but  states  that  they  were  given  to 
secure  the  payment  of  part  of  the  purchase  money  of  the  mort- 
gaged premises,  consisting  of  a  lot  of  land  in  the  township  of 
Bergen,  conveyed  by  the  complainant  to  the  defendant,  McEwen, 
by  deed  dated  the  twenty-eighth  day  of  August,  eighteen  hun- 
dred and  thirty-five.  That  the  said  lot  was  conveyed  to  the 
complainant  by  one  Aaron  Tuers,  and  that  the  complainant 
sold  and  conveyed  to  the  defendant  about  thirty-three  hundredth:* 
of  an  acre  of  land  more  than  was  conveyed  to  him  by  Tuers. 
That  at  the  time  of  the  conveyance  of  the  lot  to  the  complainant, 
it  was  enclosed  by  fences  which  were  understood  to  be  line  fences, 
and  to  designate  the  lines  of  the  lot.  That  before  the  convey- 
ance to  the  defendant  by  the  complainant,  the  complainant  re- 
moved the  fence  on  the  north-east  side  of  the  said  lot,  and  about 
twenty  feet,  enclosing  part  of  an  adjoining  wood  lot.  That 
about  fifteen  feet  of  the  rear  of  the  lot  is  claimed  by  the  heirs  of 
Aaron  Tuers,  as  not  included  or  intended  to  be  conveyed  in  the 
deed  from  Tuers  to  the  complainant.  That  the  lot  was  pur- 
chased by  the  defendant  for  the  purpose  of  erecting  thereon  a 
cotton  factory  and  dyeing  establishment,  and  believing  that  lie 
had  a  lawful  title  to  the  said  lot,  as  described  in  the  boundaries 
in  the  said  deed  of  conveyance,  and  as  the  fences  stood  at  the 
time  of  the  conveyance,  the  defendant  proceeded  to  erect  on  the 


APRIL  TERM,  1841.  413 

i  Van  Waggoner  v.  SIcEwen  et  al. 

premises,  at  an  expense  of  four  thousand  dollars,  a  dwelling, 
house,  cotton  factory  and  dye-house,  and  to  sink  a  -well.  That 
the  land  now  claimed  by  the  heirs  of  Aaron  Tuers,  and  to  which 
the  defendant  believes  they  have  a  valid  title,  will,  if  recovered, 
deprive  defendant  of  his  well  and  nearly  one-half  of  the  factory ; 
lliat  in  addition  to  the  loss  of  the  land,  the  defendant  will  bo 
subjected  to  great  loss  by  the  necessity  of  removal,  and  the  in- 
terruption of  his  business.  The  answer  insists,  that  no  decree 
of  foreclosure  should  be  made,  until  the  complainant  procure 
and  convey  to  the  defendant  a  valid  title  for  that  part  of  the  lot 
claimed  by  the  heirs  of  Aaron  Tuers ;  or,  that  such  sum  should 
bo  deducted  from  the  amount  due  upon  said  mortgage,  as  will 
bo  sufficient  to  complete  the  title,  or  to  indemnify  the  complain- 
ant against  all  loss  and  damages  incurred  by  the  failure  of  titlo 
to  a  part  of  the  premises. 

The  cause  came  on  for  final  hearing  upon  the  pleadings  and 
proofs. 

J.  D.  ,MilUr,  for  complainant. 

L.  D.  Hardenbergh,  for  defendants. 

THE  CHANCELLOR.  The  defense  set  up  cannot  avail  the 
defendant  in  this  action.  Here  is  no  eviction  or  disturbance  of 
the  defendant,  or  even  ejectment  brought,  and  there  never  may 
be.  If  a  suit  was  pending  to  try  the  title,  or  the  defendant  had 
been  dispossessed,  there  would  be  propriety  in  resisting  the  fore- 
closure of  the  mortgage.  This  distinction  is  recognized  in  the 
case  of  Johnson  v.  Gere,  2  John  Chan.  P..  547,  and  in  Shan- 
non v.  MarscUs  and  others,  Saxon,  426.  Should  the  heir 
of  Tuers,  hereafter  dispossess  the  defendant,  he  must  resort  to 
his  action  on  the  covenants  in  his  deed.  This  court  wil 
undertake  to  settle  the  question  of  title  between  the  defendant 
and  the  heirs  of  Tuers.  The  heirs  arc  not  even  parties  liere, 
and  without  first  settling  that  question  the  defence  ect  up  is  of 


414  CASES  IN  CHANCERY, 

Van  Waggoner  v.  McEwen  et  al. 

no  avail  whatever.    The  whole  case  made  is  nothing  more  than 
an  allegation  of  an  outstanding  title. 

There  must  be  a  reference  to  a  master  to  ascertain  the  amount- 
due  on  complainant's  mortgage. 
Order  accordingly. 


CITED  in  Jaques  v.  Esler,  3  Gr.  C%.463;  Glenn's  Ad.  v.  Whipple,  1 
60;  Hill  v.  Eavison,  5  C.  E.  Gr.  <23&\Hulfi*h  v.  O^Brien^  Id.  230;  Price's 
Ex.  v.  Lavatory  12  0.  E,  Gr.  827.        ..  ______  :.  *iC  i^-  -•••  ...... 


CASES 

ADJUDGED  nt 

THE   COUBT  OF  CHANCERY 

OF  THE  STATE  OF  NEW-JERSEY. 
JULY    TERM,    1841. 


WILLIAM  C.  MULFORD  and  JOSEPH  LODGE,  junior,  two  of  the 
Administrators  of  SAMUEL  DAEE,  deceased,  v.  BENJAMIN 
ALLEN,  Surviving  Executor  of  BENJAMIN  ALLEN,  deceased, 
and  MARY  A.  DARE. 

The  cboses  in  action  of  the  wife,  whether  acquired  before  or  daring  the  co- 
verture, not  reduced  into  possession  by  the  husband,  survive  to  the  wife. 

If  the  husband,  before  marriage,  make  a  settlement  on  his  wife  in  considera- 
tion of  her  fortune,  he  will  be  considered  in  equity  as  the  purchaser  of  her 
fortune,  and  her  choses  in  action,  though  not  reduced  into  possession  by 
her  husband,  will  go  to  his  representatives.* 

THE  bill  was  originally  filed  in  the  name  of  all  the  adminis- 
trators of  Samuel  Dare,  deceased,  of  whom  Mary  A.  Dare,  his 

•Accord.  Blois  v.  Hertford,  2  Frnion,  501;  Ld.  Carteret  v.  Paschal  3  P.  W. 
199,  note  D.  But  according  to  the  modern  cases  it  ia  established  that  the  set- 
tlement, to  be  the  purchase  of  the  wife's  fortune,  must  either  express  it  to  be 
for  that  consideration,  or  the  contents  of  the  settlement  altogether  must  im- 
port that,  and  plainly  import  it  as  much  as  if  it  were  i  xpressed.  Per  Ld.  El- 
don  in  Drttce  v.  Denison,  6  Vesey,  395.  See  also  Carry.  Tavlor,  \§Vtseyt 
674;  Mil  ford  v.  Mitford,^  Vesty,  87;  Beretford  v.  Hobson,  1  Mad  Jock' t  J?rf> 
199;  Blois  v.  Hertford,  2  Vtrnon  503,  note  4;  1  Rtfer  on  Hush,  and  Wife, 
289,  ft  sty. 


416  CASES  IN  CHANCERY, 


Adm'rs  of  Dare  v.  Ex'rs  of  Allen. 


widow,  was  one ;  but  at  January  term,  1840,  the  name  of  Mary 
A.  Dare,  who  claimed  adversely  to  the  complainants,  was  ordered 
to  be  stricken  out  of  the  bill  as  complainant,  and  she  was  made 
a  defendant.*  The  bill  states  that  Benjamin  Allen,  by  his  will, 
dated  the  1st  of  December,  1823,  after  making  provisions  for  his 
wife,  &c.,  bequeathed  the  residue  of  his  estate  to  be  divided 
equally  among  his  children,  and  died  on  or  about  January  1st 
1824.  That  Benjamin  Allen  and  William  Allen,  the  executors 
named  in  said  will,  duly  proved  the  same,  and  that  "William 
hath  died,  leaving  Benjamin  surviving.  That  the  said  Benja- 
min Allen  settled  his  accounts  as  surviving  executor  of  the  said 
Benjamin  Allen,  deceased,  in  the  surrogate's  office  of  the  county 
of  Gloucester,  exhibiting  a  nett  balance  of  eighteen  thousand 
four  hundred  and  forty-seven  dollars  and  forty  cents  in  his  hands, 
to  be  disposed  of  agreeably  to  the  will  of  the  said  testator.  That 
Mary  A.  Dare,  one  of  the  daughters  of  the  said  testator,  was,  at 
the  date  of  his  will  and  at  the  time  of  his  death,  the  wife  of 
Samuel  Dare,  late  of  the  county  of  Salem,  deceased.  That  the 
said  Samuel  Dare  died  on  or  about  the  15th  day  of  February, 
1 838,  intestate,  leaving  a  large  real  and  personal  estate,  and 
leaving  the  said  Mary  A.  Dare  his  widow.  The  administration 
upon  his  estate  was  in  due  form  of  law  granted,  by  the  surrogate 
of  the  county  of  Salem,  to  the  complainants  and  the  said  Mary  A. 
Dare.  That  the  said  Samuel  Dare  died  seized  of  a  large  real 
and  personal  estate ;  and  that  the  said  Mary  A.  Dare  has  de- 
manded and  received  her  dower  in  the  real  estate,  and  will  be 
entitled  to  one-third  of  the  surplus  of  the  personal  estate,  amount, 
ing  by  estimation  to  four  thousand  dollars.  That  the  said  Sam- 
uel Dare  was  entitled,  as  the  husband  of  the  said  Mary  A.  Dare, 
under  the  will  of  her  father,  Benjamin  Allen,  to  the  sum  of 
t\vclve  hundred  and  twenty-nine  dollars  and  fifty-five  cents,  only 
a  small  portion  of  which  was  paid  to  the  said  Samuel  Dare  in  hia 
life  time.  That  the  surviving  executor  of  the  said  Benjamin 
Allen  repeatedly  promised  to  pay  the  said  legacy,  and  actually 
paid  to  the  said  Samuel  Dare,  or  to  his  wife  Mary  for  him  and 
*  See  ante,  page  288. 


JULY  TERM,  1841.  417 


Adm'rs  of  Dare  v.  Ex'ra  of  Alien. 


to  his  use,  interest  upon  the  said  legacy.  That  the  complainants 
have  applied  to  him  for  payment  thereof,  and  that  he  refuses  to 
pay  the  eamc.  Prayer  that  the  defendants  may  account,  and  pay 
over  the  legacy,  with  interest,  to  the  complainants.  . 

The  answer  of  the  defendants  admits  the  will  of  Benjamin 
Allen,  the  death  of  the  testator,  the  probate  of  his  will,  tho  mar- 
riage of  his  daughter  Mary  to  Samuel  Dare,  the  death  of  Sam- 
uel Dare,  and  the  right  of  his  widow,  Mary  A.  Dare,  to  a  por- 
tion of  his  estate,  as  set  forth  in  the  bill  of  complaint.  And 
Mary  A.  Dare,  answering  for  herself,  saith,  that  at  tho  death 
of  her  father,  Benjamin  Allen,  her  husband,  Samuel  Dare,  was  a 
man  of  large  estate,  and  carrying  on  a  prosperous  business ;  that 
he  informed  this  defendant  that  he  had  no  need  of  the  said  lega- 
cy bequeathed  to  her  by  her  father,  that  ho  would  not  accept  or 
receive  it,  or  exercise  any  right  or  control  over  it,  but  that  it 
might  remain  in  the  hands  of  her  brother,  the  surviving  execu- 
tor of  her  father,  for  her  solo  and  separate  use  and  benefit,  and 
that  the  interest  accruing  thereon  might  be  received  by  her  alono 
and  be  appropriated  by  her  to  such  uses  and  purposes  as  sho 
alone  might  see  proper.  That  she  received  from  the  said  exec- 
utor sundry  goods  and  chattels  and  payments  on  account  of  tho 
said  legacy,  and  also  the  interest  on  the  balance  thereof,  up  to 
the  year  1837.  That  the  said  interest  was  so  received  by  this 
defendant  with  the  knowledge  and  approbation  of  her  husband, 
the  said  Samuel  Dare ;  that  no  part  of  it  was  paid  over  to  him, 
but  the  whole  of  it  was  appropriated  to  such  uses  and  purposes 
as  she  saw  proper,  without  any  control,  direction  or  authority 
exercised  or  attempted  to  be  exercised  in  relation  thereto  by  tho 
said  Samuel  Dare.  The  defendant,  Benjamin  Allen,  surviving 
executor  as  aforesaid,  answering  for  himself,  saith,  that  he  mado 
certain  payments  on  account  of  the  said  legacy  to  the  said  Mary  A. 
Dare.  That  a  settlement  was  made  with  her  on  the  2Sth  of  Ocjo- 
ber,  1828,  at  which  time  there  remained  in  his  hands  a  balance  of 
one  thousand  dollars,  upon  which  she  was  entitled  to  interest, 
and  which  was  paid  to  her  from  that  time  until  the  2Sth  of  Oc- 
tober, 1837;  and  that  the  interest  from  that  time,  with  the  prin- 


418  CASES  IN  CHAKCEKY, 


Adm'rs  of  Dare  v.  Ex'rs  of  Allen. 


'cipal  of  the  legacy,  still  remains  due.  That  the  said  Samuel  Dare 
in  his  life  time,  as  defendant  was  informed  and  as  he  believes,  al- 
ways declined  receiving,  or  having  anything  to  do  with  the  said 
legacy ;  that  he  left  it  in  the  hands  of  this  defendant,  for  the  sole 
and  separate  use  of  the  said  Mary  A.  Dare ;  and  that  the  interest 
to  accrue  thereon,  was  in  like  manner  to  be  received  by  her,  and 
appropriated  in  such  manner,  and  to  such  uses  and  purposes,  as 
she  might  deem  proper,  without  any  control  or  direction  from  the 
£aid  Samuel  Dare.  That  the  several  sums  of  money  paid  by 
.this  defendant  to  the  said  Mary  A.  Dare,  were  paid  to  and  for 
her  sole  and  separate  use ;  and  he  utterly  denies  that  he  ever 
paid  to  the  said  Samuel  Dare,  in  his  life  time,  any  part  or  por- 
tion of  the  said  legacy,  or  of  the  interest  thereon,  or  that  the 
said  Samuel  Dare  ever  demanded  the  said  legacy,  or  the  interest 
thereon,  or  that  this  defendant  ever  promised  to  pay  him  the 
same.  Insists  that  the  said  legacy,  not  having  been  collected  or 
reduced  into  possession  by  the  said  Samuel  Dare  in  his  life  time, 
survives  to  the  said  Mary  A.  Dare. 

The  cause  came  on  for  hearing  upon  the  bill  and  answer ;  no 
replication  having  been  filed,  nor  any  evidence  taken  by  either 
party. 

Jcffera,  for  complainants. 

MaccuUoch  and  I.  JI.  Williamson,  for  defendants.  Cases 
cited  for  the  defendants :  Elmer's  Dig.  58,  s.  32 ;  1  Roper  on 
•JIusb.  and  Wife,  201,  204,  209 ;  Blount  v.  Bestland,  5  Vesey, 
615 ;  Wildman  v.  Wildman,  9  Vesey,  174 ;  Nash  v.  ffash, 
3  Maddoctts  Rep.  133,  411 ;  3  Levinz,  403 ;  2  Maule  and 
Sd.  393 ;  2  Kent's  Com.  136  ;  Schuyler  v.  Hoyle.  5  Johns. 
Chan.  R.  196. 

THE  CHANCELLOR.  This  case  is  brought  to  a  hearing  on 
till  and  answer ;  and  upon  the  ordinary  rule  of  the  court,  as 
•well  as  by  the  statute  in  this  state,the  answer  is  to  be  taken  as  true. 
This  leaves  us  in  no  doubt  as  to  the  facts  of  the  case,  for  they 


JULY  TERM,  1841. 


Adm'rs  of  Dar    v.  Ex'rs  of  Allen. 


ore  stated  by  the  defendants  in  a  very  plain  and  explicit  manner 
Tl ic  bill  charges,  that  Benjamin  Allen,  by  his  will,  bequeathed 
to  his  daughter  Mary,  one  of  the  defendants,  and  who  was  at 
the  time  married  to  Samuel  Dare,  a  considerable  legacy,  and 
the  amount  of  which  legacy  is  now  claimed  by  the  representa- 
tives of  that  husband  as  belonging  to  his  estate.  The  bill  does 
not  allege  that  any  change  ever  took  place  in  the  life  time  of  the 
husband  in  the  character  of  the  demand,  by  giving  new  securi- 
ties, or  entering  into  any  fresh  obligations,  but  proceeds  upon  the 
fact  that  the  executors  of  Benjamin  Allen  had  paid  the  husband 
u  part  of  the  money,  and  repeatedly  promised  to  pay  him  the 
residue  ;  and  that,  as  the  legacy  accrued  to  the  wife  during  her 
coverture,  her  husband  became  entitled  to  it  in  his  own  right, 
without  reducing  it  into  possession.  The  answer  is  joint  and 
eeveral,  by  Benjamin  Allen,  the  surviving  executor  of  the  tes'.a- 
tor,  and  Mary  A.  Dare,  the  widow,  and  it  places  the  facts  in  & 
very  different  light  from  the  complainants' bill.  After  admitting 
the  legacy  bequeathed  to  Mrs.  Dare,  and  the  amount  still  due  on 
that  account  in  the  hands  of  the  executor  of  Benjamin  Allen, 
Mary  A.  Dare,  the  widow,  answering  for  herself,  says,  that  her 
husband,  being  a  man  of  large  estate  and  in  prosperous  business, 
told  her  that  he  had  no  need  of  the  legacy  given  her  by  her  fa- 
ther's will,  and  that  he  would  not  accept  or  receive  it,  but  i: 
might  remain  in  the  hands  of  her  brother,  the  executor  of  hir 
father,  for  her  sole  and  separate  use ;  and  that  she  accordingly 
let  the  money  remain  in  the  executor's  hand?,  and  receive  1  for 
Jier  own  use  the  interest  on  it  from  year  to  year,  with  her  has- 
band's  knowledge  and  consent,  and  always  appropriated  it  to 
such  uses  as  she  pleased,  without  being  controlled  by  her  hu» 
band.  And  the  surviving  executor,  answering  for  himself,  says 
that  the  principal  of  the  legacy  still  remain:*  in  his  hands  ;  tjat 
.he  paid  the  interest  annually  to  Mary  A.  Dare  during  her  hus- 
band's life  time,  down  to  the  year  1837,  from  which  time  the  .n- 
tLTcst  remains  unpaid.  That  he  was  informed  that  Samuel  Dar ; 
declined  having  anything  to  do  with  the  legacy.  IIo  deniee 
that  he  paid  to  Samuel  Dare  in  his  life  time  any  portion  of 


CASES  IN  CHANCERY, 


Adm'rs  of  Dare  v.  Ex'rs  of  Allen. 


the  said  legacy,  or  ever  promised  so  to  do,  or  that  the  said  Sam- 
uel Dare  demanded  it,  or  any  part  of  it,  from  him  ;  and  he  fur- 
ther denies  that  there  ever  was  any  conversation  between  him 
and  Samuel  Dare  respecting  the  said  legacy. 

Taking  this  answer  to  be  true,  all  pretence  of  any  act  on  the 
part  of  the  husband  towards  obtaining  possession  of  the  debt,  is 
done  away.  So  far  from  being  paid  a  part  and  promised  the 
residue,  it  does  not  appear  that  one  word  ever  passed  between 
him  and  the  executor  respecting  it.  I  suppose,  to  a  man  in  lu's 
circumstances,  the  bequest  to  his  wife,  which  amounted  to  twelve 
or  thirteen  hundred  dollars  only,  was  a  matter  of  no  moment ; 
or,  as  I  am  more  willing  to  believe,  he  might  have  felt  a  just 
pride  not  to  interfere  with  his  wife's  patrimony. 

The  case  is  brought,  then,  to  the  single  question,  whether 
there  was  any  necessity  for  the  husband  to  reduce  this  debt  into 
possession  during  his  life,  to  enable  his  representatives  after  his 
decease  to  claim  it  ?  No  principle  is  better  settled,  than  that  the 
choses  in  action  of  the  wife,  not  reduced  into  possession  by  the 
husband,  survive  to  her.  Embarrassment  sometimes  arises  from 
not  distinguishing  between  the  different  kinds  of  personal  proper- 
ty to  which  a  wife  may  become  entitled.  Personal  chattels,  such 
as  household  goods  and  things  moveable,  vest  in  the  husband 
absolutely  at  the  marriage,  without  the  intervention  of  any  court 
or  any  act  on  his  part  to  establish  his  claim  to  it.  But  to  her 
choses  in  action,  such  as  debts  due  her  by  note,  or  bond,  or  lega- 
cy, &c.,  he  has  only  a  qualified  interest,  and  if  he  fail  during  hie 
life  to  assert  and  maintain  that  right,  by  reducing  them  into  pos- 
session, if  the  husband  die  first,  they  belong  to  the  wife  by  sur- 
vivorship. Nor  is  there  any  difference  in  this  principle  whether 
the  choses  in  action  belong  to  the  wife  at  the  time  of  the  mar- 
riage, or  accrue  during  coverture.  A  distinctic^r-jf  this  kind  has, 
I  find,  been  etated  by  counsel  in  arguments  and  in  some  elemen- 
tary treatises,  but  the  adjudged  cases  make  no  difference,  and  in 
several  of  the  most  important  cases  the  property  actually  came 
to  the  wife  during  the  marriage.  The  only  difference  is  in  the 
proper  parties  to  a  suit  for  recovering  these  demands  in  the  life 


JULY  TLULE,  1811.  421 


Atlca'n  of  Daro  v.  Ex'rs  of  Allen. 


time  of  the  husband  ;  for  those  rights  accruing  to  the  wife  before 
marriage,  it  -^Guld  seem  proper  that  the  wife  should  be  joined  in 
tlit  cuit  v/ith  her  husband ;  but  in  those  accruing  during  raar- 
r.agc,  she  may  or  may  not  bo  joined,  at  pleasure.  The  case  of 
Elount  v.  Jfestland,  cited  from  5  Vesey,  515,  is  one  of  a  legacy 
made  to  a  married  woman.  The  only  question  made  was, 
•whether  under  the  circumstances  the  acts  of  the  husband  might 
not  be  considered  as  snfficient  to  perfect  liis  right  in  the  property, 
Vat  it  was  adjudged  otherwise,  and  the  widow  was  held  to  be 
entitled.  So  also  in  the  case  of  Wildman  v.  Wildman,  9  Ve~ 
sey,  174,  the  right  accrued  during  coverture,  and  the  question 
•vr^s,  whether  the  husband  had  consummated  his  claim  in  his  life 
time ;  and  the  court,  being  of  opinion  that  he  had  done  no  act 
reducing  it  into  possession,  decided  in  favor  of  the  widow.  In 
Schuyler  v.  Hoyle  and  wife,  5  John.  Chan.  J?.  19G,  this  whole 
subject  is  carefully  examined,  and  the  cases  reviewed.  The 
principle  here  asserted  is  fully  sustained,  and  it  is  shown  that  it 
makes  no  difference  whether  the  wife's  interest  vests  before  or 
after  coverture.  See  also  2  Maddoctts  Rep.  133,  2  Maule  and 
.  S93,  9  Vcsey,  87. 

can  the  complainants  derive  any  advantage  from  the  ad- 
mitted fact,  that  Mary  A.  Dare  has  received  dower  in  the  lands 
of  her  husband,  and  will  receive  a  very  handsome  share  of  his 
personal  estate.  No  suc^i  considerations  can  at  all  vary  her 
rights  in  the  property  in  dispute  here.  Had  this  husband,  before 
marriage,  made  a  settlement  on  his  wife  in  consideration  of  her 
fortune,  he  would  be  considered  in  equity  as  the  purchaser  of  her 
fortune,  and  her  choses  in  action  would  have  belonged  to  her 
husband's  representatives  without  being  reduced  into  possession ; 
but  this  rule  has  no  application  to  property  wliich  a  wife  may 
derive  from  her  husband  at  his  death. 

As,  therefore,  Samuel  Dare  in  his  life  time  took  no  steps  to 
reduce  into  possession  the  property  in  dispute  here,  it  snrvi  vcd 
to  his  widow,  Mary  A.  Dare,  r.nd  the  complainants  have  failed 
to  make  out  a  case  entitling  them  to  a  decree  of  the  court  in 
their  favor.  The  bill  must  be  dismissed,  with  costs. 


422  CASES  IN  CHANCERY, 


JOHN   Ross  and  others  v.   The  ELIZABETH-TOWN   AND  SOM- 
EKVILLE  RAILROAD  COMPANY. 

Where  the  charter  of  a  railroad  company  authorizes  the  construction  of  the 
road,  but  provides  that  "payment  or  tender  of  payment  of  all  damages  for 
Oie  occupancy  of  lands  through  which  the  road  may  be  laid  cut,  shivll  be 
made  before  the  company  shall  enter  upon  or  break  ground  in  the  premises, 
except  for  the  purpose  of  surveying  and  laying  out  the  road,  unless  the  con- 
sent of  the  owner  or  owners  of  such  lands  be  first  had  and  obtained  ;"  if  tuft 
company  enter  upon  any  land  in  violation  of  such  provision,  for  the  purpose 
of  constructing  their  road,  without  payment  or  tender  of  damages,  and  with- 
out the  consent  of  the  owner,  it  affords  a  clear  case  for  the  interference  of  a 
court  of  equity  by  injunction. 

In  such  cases  it  is  proper  to  require  notice  of  application  for  the  injunction  to 
be  given,  wherever  it  can  be  done,  and  save  the  complainant  from  the  injury 
which  ho  Eetks  to  avert. 

The  operations  of  a  company  in  the  construction  of  a  great  work  of  pub  io 
convenience,  should  not  be  suddenly  arrested  without  notice,  unless  in  a  case 
of  urgent  and  pressing  necessity  ;  yet,  where  the  complainants  cannot  bo 
otherwise  secured  in  their  rights,  an  ex  parte  order  for  an  injunction  w.ll  be 
granted. 

Under  the  charter  of  the  Elizabeth-l'own  and  Somerville  railroad  company, 
before  the  company  can  take  the  land  for  the  construction  of  their  road,  the 
ilaims  of  all  persons  having  rights  in  the  laud  are  clearly  to  be  satisfied,  ua 
well  those  who  have  the  residuary  interest  as  those  having  the  present  estate. 

The  court  will  refuse  its  aid,  not  merely  to  a  party  who  fraudulently  misrepre- 
sents his  title,  but  also  to  one  who  remains  silent  when  duty,  candor  aud 
f. iir  dealing  require  him  to  speak  out. 

INJUNCTION  bill,  filed  May  1st,  1841,  by  the  children  and 
heirs  at  law  of  John  Ross,  late  of  the  county  of  Somerset,  de- 
ceased, states,  that  the  said  John  Ross,  before  and  at  the  time 
of  his  death,  was  seized  in  fee  simple  and  possessed  of  a  large 
tract  of  land,  situate  in  the  township  of  Bridgewatcr,  in  the 
county  of  Somerset,  and  being  so  seized  and  possessed  thereof, 
made  and  executed  his  last  will  and  testament  in  duo  form  of 
law  to  pass  real  estate,  bearing  date  the  20th  day  of  January, 
1808  ;  and  thereby,  among  other  tilings,  after  providing  for  the 
payment  of  his  debts,  gave  one-third  of  the  residue  of  his  estate 


JULY  TERM,  1811. 


Rosa  et  al.  v.  E!iz.  Town  nn  I  Somerville  Railroad  Co. 

to  his  widow,  Martha  Ross,  during  her  widowhood  ;  and  to  his 
eons,  John,  Joseph,  Peter,  James  and  William,  ho  gave  each  two 
shares  ;  and  to  his  three  daughters,  Sarah,  Martha  and  Esther, 
he  gave  each  one  share  of  all  the  residue  of  his  estate,  after  tho 
payment  of  his  debts ;  and  in  casp  of  the  death  of  either  of  hL» 
children  before  attaining  the  age  of  twenty-one  years,  he  gavo 
his  or  her  share  so  dying  to  the  survivors.  The  will  further  di- 
rects, that  the  estate  should  not  be  divided  until  the  youngest 
child  attained  the  age  of  twenty-one  years.  That  the  testator 
died  in  the  year  1808,  leaving  the  said  will  in  full  force,  in  no 
wise  altered  or  revoked,  and  leaving  him  surviving  eight  cliil 
dren,  the  devisees  named  in  his  will,  viz.,  Sarah,  who  hath  sinco 
intermarried  with  Jeremiah  Parsells,  John  Ross,  Martha  Ross, 
who  married  Isaac  Staats  and  afterwards  died,  leaving  ouo 
daughter,  Margaret,  who  intermarried  with  Reuben  Freeman, 
Esther  Ross,  who  hath  since  intermarried  with  David  R.  Run- 
yan,  and  'Joseph  Ross,  Peter  Ross,  James  Ross  and  "William 
Ross.  That  on  the  28th  day  of  March,  1808,  the  executors 
named  in  the  said  will  duly  proved  the  same,  and  took  upon 
themselves  the  burthen  of  the  execution  thereof,  and  the  sai  J 
will  was  duly  recorded  in  the  surrogate's  office  of  the  said  coa'nty 
of  Somerset.  That  after  the  decease  of  the  testator,  his  widow, 
the  said  Martha  Ross,  with  the  assent  of  the  devisees  named  in: 
the  will,  remained  in  the  possession  and  enjoyment  of  tho  de- 
vised premises,  from  the  death  ot  I  he  testator  until  the  year  1823,  j 
when  the  devisees,  by  deed  of  assignment  dated  the  2d  day  of  1 
April,  1828,  assigned  and  set  off  to  the  said  widow,  Martha  Ross, ; 
as  and  for  her  dower  in  the  real  estate  of  the  said  John  Ross, 
deceased,  two  certain  lots  of  land,  with  the  appurtenances  in  the 
B  lid  deed  particularly  described,  to  hold  to  the  said  Martha  Ross 
during  her  natural  life.  That  from  the  date  of  the  said  assign- 
ment, the  eaid  Martha  Ross  hath  remained  in  possession  of  the 
premises  conveyed  by  the  said  assignment,  and  hath  received 
the  rents,  issues  and  profits  thereof.  That  on  the  29th  day  of 
May,  1829,  James  Ross,  one  of  the  children  and  devisees  of  »he| 
said  John  Ross,  deceased,  together  with  his  wife,  by  deed  ol  ro  j 


CASES  IK  CHANCERY, 


Ross  et  al.  v.  Eiiz.  Town  and  Somerville  Railroad  Co. 

lease  bearing  date  on  the  day  and  year  last  aforesaid,  for  the 
'consideration  of  three  hundred  and  sixty  dollars,  released  to  his 
brothers,  John,  Joseph  and  William,  three  others  of  the  devisees 
in  the  said  will  named,  all  his  estate  and  interest  in  the  premises 
'so  as  aforesaid  assigned  to  the  said  Martha  Ross,  for  her  dower  in 
the  real  estate  of  the  said  testator  ;  which  said  release  was  duly 
acknowledged,  and  on  the  80th  day  of  May,  1829,  was  recorded 
in  the  clerk's  office  of  the  said  county  of  Somerset. 
j  That  on  the  9th  day  of  -February,  1831,  the  council  and  gene- 
ral assembly  of  the  state  of  New-Jersey,  passed  an  act,  entitled, 
"An  act  to  incorporate  the  Elizabeth-Town  and  Somerville  rail- 
road company  ;"  by  the  sixth  section  of  which  said  act  it  is  enact- 
ed, that  the  president  and  directors  of  the  said  company  be,  and 
they  are  hereby  authorized  and  invested  with  all  the  rights  and 
powers  necessary  and  expedient  to  survey,  lay  out  and  construct 
a  railroad  or  lateral  roads,  from  one  or  more  suitable  place  or 
places  in  the  village  of  Somerville,  to  one  or  more  place  or  places 
in  Elizabeth-Town,  passing  as  near  as  practicable  through 
Bound-Brook,  Plainfield,  Scotch  Plains  and  Westfield,  not  ex- 
ceeding sixty-six  feet  wide,  with  as  many  sets  of  tracks  and  rails 
as  they  may  deem  necessary  ;  and  it  shall  be  lawful  for  the  said 
president  and  directors,  their  agents,  engineers,  superintendents, 
or  others  in  their  employ,  to  enter  at  all  times  upon  all  lands  or 
water,  for  the  purpose  of  exploring,  surveying,  levelling  or  lay- 
ing out  the  route  or  routes  of  such  railroad  or  lateral  roads,  and 
of  locating  the  same,  and  to  do  and  erect  all  necessary  works, 
buildings  and  appendages  thereof,  doing  no  unnecessary  injury 
to  private  or  other  property  :  and  when  the  route  or  routes  of 
Btich  road  or  lateral  roads  shall  have  been  determined  upon,  and 
a  survey  of  such  route  or  routes  deposited  in  the  office  of  the 
secretary  of  State,  then  it  shall  be  lawful  for  the  said  company, 
by  its  officers,  agents,  engineers,  superintendents,  contractors, 
workmen  and  other  persons  in  their  employ,  to  enter  upon,  take 
possession  of,hold,have,  use,  occupy  and  excavate  any  such  lands, 
and  to  erect  embankments,  bridges,  ferries,  and  all  other  works 
necessary  to  lay  rails,  and  to  do  all  other  things  which  shall  le 


JULY  TERM,  1841.  425 


Ross  ct  al  v.  Eliz.  TOTII  and  Somervillo  Railroad  Co. 

suitable  or  necessary  for  the  completion  or  repairs  of  the  said  road 
or  roads,  subject  to  such  compensation  as  13  herein  .if  tor  provided: 
Provided  always,  that  the  payment,  or  tender  of  tho  payment, 
of  all  damages  for  tho  occupancy  of  lands  through  -which  the 
caid  railroad  or  railroads  may  bo  laid  out,  bo  made  before  the 
raid  company,  or  any  person  under  their  direction  or  employ, 
chall  enter  upon  or  break  ground  in  the  premises,  except  for  the 
purpose  of  surveying  and  laying  out  said  road  or  roads,  unless 
the  consent  of  the  owner  or  owners  of  such  lands  be  first  liad 
end  obtained. 

And  by  the  seventh  section  of  the  said  act  it  is  further  enacted, 
that  when  the  said  company  or  its  agents  cannot  agree  with  the 
o\vner  or  owners  of  such  required  lands  or  materials  for  tho  use 
cr  purchase  thereof,  or  when,  by  reason  of  the  legal  incapacity 
or  absence  of  such  owner  or  owners,  no  such  agreement  can  be 
made,  a  particular  description  of  the  land  or  materials  so  requir- 
ed for  the  use  of  the  said  company,  in  the  construction  of  tho 
caid  road,  shall  bo  given  in  writing,  under  tho  oath  or  affirma- 
tion of  some  engineer  or  proper  agent  of  the  company,  and  also 
the  name  or  names  of  tho  occupant  or  occupants,  if  any  there 
be,  and  of  the  owner  or  owners,  if  known,  and  their  residence, 
if  the  same  can  be  ascertained,  to  one  of  the  justices  of  tho  su- 
preme court  of  this  state,  who  shall  cause  the  said  company  to 
give  notice  thereof  to  tho  persons  interested,  if  known  and  in  this 
ctate,  or  if  unknown  or  out  of  this  state,  to  mako  pubh'cation 
thereof,  as  ho  shall  direct,  for  any  term  not  less  than  twenty 
days,  and  to  assign  a  particular  time  and  place  for  tho  appoint- 
ment of  the  commissioners  herein  after  named,  at  which  time, 
upon  satisfactory  evidence  to  him  of  the  service  or  publication  of 
Duch  notice  aforesaid,  ho  shall  appoint,  under  his  hand  and  seal, 
three  disinterested,  impartial  and  judicious  freeholders,  not  rcsi- 
tlcut  in  the  county  in  which  the  lands  or  materials  in  controversy 
lie,  or  the  owners  reside,  commissioners  to  examine  and  appraise 
the  said  lands  or  materials,  and  to  assess  the  damages,  upon  such 
notice  to  be  given  to  the  persons  interested,  as  shall  be  directed 
by  the  justice  making  such  appointment,  to  be  expressed  therein, 
u  65 


426  CASES  IN  CHANCERY, 

•H.      ..    .    >T---        ' 

Ross  et  al  v.  Eliz .  Town  and  Somerville  Kailroad  Co . 

not  less  than  twenty  days :  And  it  shall  be  the  duty  of  the  said 
commissioners,  having  first  taken  and  subscribed  an  oath  or 
affirmation  before  some  person  duly  authorized  to  administer  an 
oath,  faithfully  and  impartially  to  examine  the  matter  in  question, 
and  to  make  a  true  report,  according  to  the  best  of  their  skill 
and  understanding,  to  meet  at  the  time  and  place  appointed,  and 
proceed  to  view  and  examine  the  said  lands  or  materials,  and  to 
make  a  just  and  equitable  estimate  or  appraisement  of  the  value 
of  the  same,  and  assessment  of  damages,  and  shall  be  paid  by 
the  company  for  such  lands  or  materials,  and  damages  aforesaid ; 
which  report  shall  be  made  in  writing,  under  the  hands  and  seals 
of  the  said  commissioners,  or  any  two  of  them,  and  filed  within 
ten  days  thereafter,  together  with  the  aforesaid  description  of  the 
land  or  materials,  and  the  appointment,  and  oaths  or  affirma- 
tions aforesaid,  in  the  clerk's  office  of  the  county  in  which  the 
lands  or  materials  are  situate,  to  remain  of  record  therein ;  which 
report,  or  a  copy  thereof  certified  by  the  clerk  of  said  county, 
shall  at  all  times  be  considered  as  plenary  evidence  of  the  right 
of  the  said  company  to  have,  hold,  use,  occupy,  possess  and  en- 
joy the  said  lands  or  materials,  or  of  the  said  owner  or  owners  to 
recover  the  amount  of  said  valuation,  with  interest  and  costs,  in 
an  action  of  debt,  in  any  court  of  competent  jurisdiction,  in  a 
suit  to  be  instituted  against  the  company,  if  they  shall  neglect 
or  refuse  to  pay  the  same  for  twenty  days  after  demand  made 
of  their  treasurer,  and  shall,  from  time  to  time,  constitute  a  lien 
upon  the  property  of  the  company,  in  the  nature  of  a  mortgage ; 
and  the  said  justice  of  the  supreme  court  shall,  on<  application 
of  either  party,  and  on  reasonable  notice  to  the  others,  tax  and 
allow  such  costs,  fees  and  expenses,  to  the  justice  of  the  BU^- 
preme  court,  commissioners,  clerks,  and  other  persons  perform- 
ing any  of  the  duties  prescribed  in  this  section  of  this  act,  as 
they  or  he  shall  think  equitable  and  right,  and  to  order  and  di- 
rect by  whom  the  same  shall  be  paid,  under  the  circumstances 
of  the  case. 

The  bill  further  states,  that  the  Elizabeth-Town  and  Somer- 
ville railroad   company  have  proceeded  to  construct  a  railroad 


JTJLT  TEEM,  1841.  427 

Ross  et  al.  v.  Eliz.  Town  and  Somarvillo  Rxilroal  Co. 

from  Eliznbetli-Town  to  Bound-Brook,  and  arc  now  engaged  in 
an  effort  and  attempt  to  extend  the  same  beyond  Bound-Brook 
to  Somerville.  That  they  have  not  only  entered  upon  the  Baid 
tract  of  land  devised  to  the  children  of  the  said  John  Ross,  and 
assigned  to  the  said  Martha  Ross  for  her  life,  (and  which  in  tho 
bill  of  complaint  is  particularly  described,)  for  the  purposes  of  ex- 
ploring, surveying,  levelling  and  laying  out  tho  route  of  tho  said 
railroad  and  of  locating  the  same,  but  under  pretence  of  consid- 
ering the  said  Martha  Ross  as  tho  owner  of  said  lands,  on  the 
SOth  day  of  November,  1840,  the  said  company  applied  to  Joseph 
C.  Ilornblower,  chief  justice  of  the  state  of  New-Jersey,  as  tho 
complainants  have  since  understood,  for  the  appointment  of  com- 
missioners to  examine  and  appraise  tho  said  lands,  or  so  much 
thereof  as  the  said  company  may  require  for  the  construction  of 
their  road,  and  that  upon  such  application  tho  following  was  al- 
leged to  be  a  particular  description  of  the  lands  thereby  declared 
to  be  owned  and  possessed  by  the  widow  Martha  Ross,  of  tho 
township  of  Bridgcwater,  in  the  county  of  Somerset,  where  tho 
said  lands  are  situate  required  for  the  use  of  tho  said  company, 
for  the  construction  of  their  said  railroad,  over  tho  lands  of  tho 
said  Martha  Ross,  who  now  occupies  the  same,  and  for  which 
the  company  cannot  agree  with  tho  said  Martha  Ross  for  the  pur- 
chase thereof,  to  wit:  [description  by  rnetcs  and  bounds].  That 
it  appears  by  reference  to  said  proceedings,  that  tho  SOth  day  of 
December  then  next,  was  assigned  by  the  chief  justice  for  tho 
appointment  of  commissioners  to  examine  and  appraise  said 
lands  so  required  and  to  assess  tho  damages,  and  tho  said  com- 
pany were  by  the  order  of  tho  said  chief  justice  directed  to  givo 
.notice  thereof  in  writing  to  the  said  Martha  Ross,  and  such  no- 
rtice  was  accordingly  given,  and  such  commissioners  were  ap- 
pointed, and  authorized  by  such  appointment  to  examine  and 
appraise  the  lands  so  required  as  aforesaid,  and  to  assess  tho  dam- 
ages to  be  paid  by  the  company  therefor,  upon  notice  to  bo  given 
to  the  said  Martha  Ross.  And  tho  said  commissioners,  upon  proof 
being  made  of  the  service  of  notice  upon  tho  said  Martha  Ross 
only  of  the  time  of  making  such  .examination,  appraisement  and 


428  CASES  IN  CHANCERY, 

Ross  et  al.  v.  Eliz.  Town  and  Somervillo  Railroad  Co. 

assessment,  did,  on  the  24th  day  of  February,  1841,  report  that 
the  sum  of  thirteen  hundred  dollars  should  be  paid  by  said  com- 
pany for  the  said  lands  and  damages,  and  that  a  receipt  of  the 
said  Martha  Ross  for  the  said  sum  of  thirteen  hundred  dollars  is 
endorsed  upon  the  said  proceedings.  That  no  notice  having  been 
given  to  the  complainants,  or  either  of  them,  of  the  institution 
and  prosecution  of  the  proceedings  af  oresaid,the  same,  with  the 
appraisement  and  estimate  of  damages,  could  have  been  intended 
to  apply  only  to  the  life  estate  of  the  said  Martha  Ross.     That 
express  notice  was  given  by  the  said  Martha  Ross  to  the  agents 
and  officers  of  the  Elizabeth-Town  and  Somerville  railroad  com- 
pany, before  the  institution  of  the  said  proceedings,  that  sho  had 
only  a  life  estate  in  the  premises,  and  that  the  fee  was  in  Ler 
children ;  that  no  notice  was  given  to  the  complainants,  or  either 
of  them,  in  conformity  with  the  provisions  of  the  said  act,  of  the 
application  to  the  chief  justice  for  the  appointment  of  commis- 
sioners ;  and  that  some  of  the  complainants,  for  themselves  and 
on  the  behalf  of  the  others,  protested  before  the  said  commission- 
era,  against  their  proceeding  to  mate  any  valuation  or  assessment 
in  the  premises ;  and  that  the  said  commissioners  were  informed 
by  one  of  the  complainants,  that  the  said  Martha  Ross  was  not 
the  owner  in  fee  of  the  said  premises.     That  the  injury  which 
will  be  sustained  by  the  said  premises  by  reason  of  the  construc- 
tion of  the  railroad,  will  be  great,  permanent  and  irreparable ; 
that  the  house  will  be  rendered  untenantable,  that  all  communi- 
cation between  the  house  and  the  other  part  of  the  premises  will 
be  intercepted  by  the  depth  of  the  cut  and  excavation,  that  the 
facilities  for  entering  the  barn  and  stable  will  be  destroyed,  and 
that  the  buildings  will  be  constantly  exposed  to  the  danger  of 
being  burnt  by  fire  from  passing  locomotive  engines ;  and  that  it 
has  been  generally  reported  and  believed  that  the  defendants  aro 
insolvent  and  unable  to  respond  in  damages.     The  bill  prays 
that  an  injunction  may  issue  to  restrain  the  defendants  from  re- 
moving fences  or  buildings,  or  breaking  ground,  or  making  ar,y 
excavation  upon  the  premises  for  the  purpose  of  constructing 
their  railroad. 


JULY  TERM,  1341  429 

Rosset  nl  v.  Eiiz.  Town  and  Soraerville  Railroad  Co. 

Upon  filing  the  bill  an  injunction  was  allowed  by  one  of  the 
masters  df  the  court. 

On  the  8th  day  of  May,  1841,  on  the  application  of  the  de- 
fendants, an  order  was  made  requiring  the  complainants  to  show 
cause,  on  the  21st  day  of  May  instant,  why  the  injunction  should 
not  be  dissolved,  and  that  both  parties  should  be  r.t  liberty  to 
take  affidavits  to  be  used  on  the  hearing.  In  pursuance  of  the 
rule,  affidavits  were  taken  by  both  parties,  and  the  hearing  hav- 
ing been  postponed  by  consent,  on  the  14th  of  June  the  defend- 
ants filed  their  answer. 

The  answer  admits  that  John  Ross  died  seized  of  the  premises, 
having  duly  executed  his  will  to  pass  real  estate,  and  that  ho 
died  about  the  year  1808,  leaving  him  surviving  his  widow  and 
eight  children,  as  set  forth  in  the  complainants'  bill ;  that  tho 
widow  was  in  possession  at  and  after  the  death  of  her  husband, 
and  has  ever  since  continued  in  possession.  States  that  on  tho 
9th  day  of  February,  1831,  the  council  and  general  assembly  of 
the  state  of  New-Jersey  passed  an  act,  incorporating  tho  Eliza- 
beth-Town and  Somerville  railroad  company,  and  that  the  said 
company  have  at  very  great  expense  constructed  and  put  in  ope- 
ration the  railroad  from  Elizabeth-Town  to  Bound-Brook,  a  dis- 
tance of  twenty  miles  and  a  half,  and  that  in  order  to  finish  tho 
road  from  Bound-Brook  to  Somerville,  as  the  defendants  are  by 
their  charter  enjoined  to  do,  they  by  their  agents  called  on  Mar- 
tha Ross,  who  was  in  possession  of  the  premises,  the  road  hav- 
ing previously  been  located  and  staked  out  through  the  same,  to 
whom  the  said  Martha  Ross  stated  that  she  was  the  sole  owner 
of  the  said  premises,  and  entitled  to  receive  compensation  for  tho 
land  and  damages  ;  that  John  Ross,  one  of  tho  complainants, 
and  who  acts  as  the  agent  of  the  others,  expressly  stated  that 
tho  premises  belonged  to  his  mother ;  that  it  was  well  known  to 
the  complainants,  before  the  application  to  the  clu'ef  justice  for 
the  appointment  of  commissioners,  that  the  road  would  cross  the 
premises  in  possession  of  the  said  Martha  Rosa ;  that  before 
making  said  application,  the  company  endeavored  to  make  an 
agreement  with  the  said  Martha  Ross  for  the  said  land  and  dam- 


430  CASES  IX  CHANCERY, 

Koss  et  ill.  v.  Eliz.  Town  and  Somerville  Railroad  Co. 

ages,  and  for  this  purpose  two  officers  of  the  company  called 
upon  her,  and  in  the  presence  of  two  of  her  children,  the  com- 
plainants John  and  William  Ross,  and  with  their  knowledge,  en- 
deavored to  agree  with  her  for  the  same ;  and  that  John  Ross, 
one  of  the  complainants,  then  represented  that  the  land  was  his 
mother's,  and  manifested  much  anxiety  that  the  amount  to  bo 
paid  to  her  by  the  company  should  be  amicably  agreed  upon; 
that  all  the  complainants  well  knew  that  the  company  were  en- 
deavoring to  agree  with  the  said  Martha  Ross  for  the  said  land 
and  damages,  without  informing  the  company,  or  in  any  way 
intimating  to  them,  or  to  their  agents,  that  they  had  any  right 
in  the  premises.  Admits  that  the  company  are  engaged  in  the 
construction  of  the  road,  and  that  it  is  located,  as  set  forth  in  the 
bill  of  complaint ;  and  that  the  defendants  are  about  to  enter  for 
the  purpose  of  constructing  their  road,  and  that  they  made  ap- 
plication to  Joseph  C.  Hornblower,  chief  justice,  for  the  appoint- 
ment of  commissioners,  as  set  forth  in  the  bill  of  complaint. 
States  that  the  said  chief  justice  appointed  James  Parker,  Gideon 
Ross  and  "William  Stites  commissioners,  who  met  upon  the  pre- 
mises on  the  24th  day  of  February,  1841 ;  that  one  of  the  com- 
plainants appeared  before  the  chief  justice  on  behalf  of  the  said 
Martha  Ross ;  that  several  of  them  appeared  before  the  commis- 
sioners, and  endeavored  to  prevail  on  them  to  allow  the  said 
Martha  Ross  a  larger  sum  for  the  land  and  damages.  That  the 
said  commissioners  awarded  to  the  said  Martha  Ross,  as  the 
owner  of  the  said  land,  thirteen  hundred  dollars  for  the  land  and 
all  damages ;  and  that  the  said  sum  is  a  large  and  full  price  for 
the  fee  simple  of  the  land  taken  by  the  company  and  for  all 
damages.  That  before  the  defendants  attempted  to  enter  on  the 
land,  they  paid  to  the  said  Martha  Ross  the  said  sum  of  thirteen 
hundred  dollars,  and  took  her  receipt  for  the  same ;  that  the  said 
sum  was  paid  to  the  said  Martha  with  the  knowledge  of  several 
of  the  complainants,  and  without  any  objection  on  their  jxirt,  or 
any  claim  of  right  by  them  in  the  premises.  That  the  defend- 
ants had  no  knowledge  of  any  person  having  any  interest  in  the 
said  premises  except  the  said  Martha  Ross,  and  that  they  were 


JULY  TERM,  1841.  431 

R^ss  et  nl.  v.  Eliz.Town  and  Somerville  Railroad  Co. 

led  to  the  belief  that  she  was  the  sole  owner  by  the  representa- 
tions of  some  of  the  complainants,  and  that  no  notice  to  the  con- 
trary was  at  any  time  given  by  the  complainants  or  any  of  them. 
Denies  that  cither  of  the  complainants  protested  before  the  com- 
missioners ngainst  any  proceeding  towards  a  valuation,  appraise- 
ment or  assessment,  but  admits  that  one  of  the  complainants 
objected,  without  stating  his  reasons  for  so  doing.  Denies  thafc 
the  commissioners  were  informed  by  either  of  the  complainants 
that  the  premises  did  not  belong  to  the  said  Martha  Ross.  Denies 
that  the  injury  to  the  premises  will  be  great  or  irreparable,  and 
also  that  the  defendants  arc  insolvent,  or  unable  to  respond  in 
damages.  The  answer,  as  well  as  the  bill,  was  accompanied  by 
numerous  affidavits,  verifying  the  facts  therein  stated. 

The  cause  came  to  hearing  on  the  28th  of  June,  1841,  at  a 
special  term  held  at  Newark,  upon  the  rule  to  show  cause  why 
the  injunction  should  not  be  dissolved. 

Scott  and  U.  W.  Green,  for  complainants. 
TJiomson  and  /.  If.  Williamson,  for  defendants. 

Cases  cited  by  defendants'  counsel.  Savage  v.  Foster,  9  Mo- 
dern, 35 ;  Berrisford  v.  Milward,  2  Atkyns,  49 ;  East  India 
Co.  v.  Vincent,  2  Hid,  83  ;  Arnot  v.  Biscoe,  1  Vcsey,  sen.  95 ; 
Bening  v.  Brown,  3  Itidgway's  Parl.  Rep.  518  ;  Wendell  v. 
Van  Rcnselaer,  1  John.  Clian.  12.  350;  Iliginbotham  v.  Bur- 
net,  5  Hid,  184 ;  Storrs  v.  Baker,  6  Hid,  ICO  ;  Crawford  v. 
Bertholf,  Saxton.,  4GO ;  17  Wendell,  151. 

THE  CHANCELLOR.  By  the  act  incorporating  the  Elizabeth- 
Town  and  Somerville  railroad  company,  the  president  and  di- 
rectors of  the  company  are  authorized  to  lay  out  and  construct  a 
railroad  from  Elizabeth-Town  to  Somerville,  and  by  a  supple- 
ment to  the  original  act  they  may  extend  the  road  to  the  Dela- 
ware river.  For  this  purpose,  liberty  is  given  to  them,  their 
agents  and  others  in  their  employ,  at  all  times  to  enter  upon  any 


432  CASES  IN  CHANCEST, 


ROBS  el  al.  v.  Eliz.Town  and  Somervillo  Railrond  Co. 


landb  in  tlieir  route,  for  the  purpose  of  exploring,  surveying 
laying  <y  ri  the  road ;  but  they  are  forbid,  in  express  terms,  from 
proceeding  to  excavate,  to  lay  their  rails,  or  in  any  way  to  take 
permanent  possession  of  any  lands  (except  by  consent  of  the 
owners)  until  they  pay  or  make  a  tender  of  payment  to  such 
owner,  all  damages  which  such  occupancy  shall  occasion.  And 
in  cases  where  the  company  cannot  agree  with  landholders,  a 
further  provision  is  made  for  the  appointment  of  commissioners, 
by  one  of  the  justices  of  the  supreme  court,  to  assess  the  dam- 
ages. The  complainants,  in  this  bill,  state  themselves  to  be  the 
devisees  in  remainder  of  John  Ross,  of  a  lot  of  land  on  the  route 
of  this  road,  of  which  their  mother,  Martha  Ross,  is  in  posses- 
sion as  tenant  for  life,  under  an  assignment  of  dower.  The  will 
of  tlieir  father  is  set  out  in  the  bill,  and  the  provisions  thereof 
arc  plain  and  according  to  the  complainant's  statement.  It  ia 
then  charged,  that  the  defendants  have  actually  entered  upon  the 
caid  lot,  and  are  proceeding  to  remove  the  fences  and  to  make 
the  necessary  excavations,  and  thus  to  commit  an  irreparable 
injury  to  their  property,  without  first  paying  or  tendering  pay- 
ment of  damages,  according  to  the  provisions  of  their  charter. 
Upon  this  case,  the  master  to  whom  application  was  made  grant- 
ed an  injunction,  restraining  the  defendants  from  taking  pos- 
session of  this  land  until  the  court  should  otherwise  order.  The 
case  presented  by  this  bill  was  a  plain  one  for  the  interference  of 
this  court,  nor,  indeed,  has  any  thing  to  the  contrary  been  urged 
by  the  defendants  on  the  argument,  except  that  they  feel  them- 
selves aggrieved  at  being  thus  stopped  in  their  operations,  with- 
out being  notified  of  the  application  for  the  injunction.  I  agree 
that  it  is  the  dictate  of  propriety,  in  cases  like  the  present,  to  direct 
notice  of  an  application  for  an  injunction  to  be  given,  whenever  it 
can  be  done  and  save  the  complainant  from  the  injuryv/hichhe 
seeks  to  avert ;  but  there  are  a  great  many  cases  continually 
arising,  where  to  take  this  course  would  defeat  the  great  end  in 
view,  that  of  preventing  an  injury.  In  this  very  case,  the  bill 
charges  that  the  company  had  actually  entered  upon  the  land, 
and  were  proceeding  to  excavate.  Had  notieo  been  given,  all 


JULY  TERM,  1841.  438 

Ross  et  al.  v.  Eliz.  Town  and  Somer villa  Railroad  Co. 

the  injury  might  have  been  inflicted  before  the  day  for  hearing 
arrived.  While,  therefore,  it  is  to  be  carefully  looked  to,  that 
the  operations  of  a  company  in  the  construction  of  a  great  work 
of  public  convenience  be  not  suddenly  stopped  without  a  case 
presented  of  an  urgent  and  pressing  necessity,  yet  I  do  not  see 
how  the  master  could,  in  the  present  instance,  have  secured  tho 
complainants  in  their  rights,  without  making  the  exparte  order. 
If  the  doctrine  so  strongly  urged,  that  notice  upon  every  applica- 
tion for  an  injunction  must  be  given,  is  to  prevail,  it  would  bo 
better  to  go  farther,  and  put  an  end  to  the  whole  power,  of -the 
court  in  granting  them  at  all.  It  is  admitted  to  be  a  delicato 
power,  which  calls  for  great  firmness  and  discretion  in  its  exer- 
cise ;  but  it  is  at  the  same  time,  as  all  must  agree,  an  indispen- 
sable power  to  reside  somewhere. 

The  defendants  have  answered  this  bill,  and  have  further  ob- 
tained an  order  allowing  both  parties  to  take  affidavits,  and  tho 
motion  to  dissolve  the  injunction  has  beefi  fully  heard  upon  the 
answer  and  affidavits.  The  case  made  by  the  defendants  may 
be  thus  shortly  stated.  Martha  Ross,  the  widow,  being  in  pos- 
session, the  company  supposed  she  alone  had  the  right  to. tho 
property,  and  they  went  on  under  their  charter,  got  commission- 
ers appointed,  who  awarded  to  her  thirteen  hundred  dollars,  tho 
e  itire  damages  to  the  property,  and  which' they  have  paid  to  her 
and  taken  her  receipt.  That  the  commissioners  have  assessed 
the  damages  under  the  belief  that  Mrs.  Ross  had  a  fee  in  tho 
lands,  and  that  the  officers  and  directors  acted  under  that  im- 
pression, cannot  be  doubted,  for  they  all  so  positively  swear. 
The  company,  then,  have  gone  on  in  good  faith,  and  obtained, 
as  they  supposed,  in  legal  form,  the  right  to  lay  their  road»on 
the  land  in  question. 

It  is  not  contended  that  the  company  have  aright  to  take  land 
for  the  road  upon  a  settlement  with  the  party  holding  the  present 
interest.  Such  a  construction  would  be  opposed  to  tho  intent 
and  object  of  the  provision,  which  designs-nothing  more  nor  leea 
than  that  the  land  to  be  occupied  by  the  line  of  the  road  shall 
first  be  paid  for,  and  to  those  who  have  rights  in  the  same. 
56 


434  CASES  IN  CHANCERY, 

Ross  et  al.  v.  Eliz.  Town  and  Somerville  Railroad  Co. 

Those  in  remainder  have  therefore  as  strong,  and  in  many  cases 
a  much  stronger  claim  for  damages  than  the  present  occupant. 
The  words  of  the  act  also  favor  this  construction ;  for  in  the  se- 
venth section,  upon  the  application  to  a  justice  of  the  supreme 
court  for  the  appointment  of  commissioners,  a  description  of  the 
property  is  required  to  be  given  to  such  justice,  with  "  the  name 
of  the  occupant  and  owner  or  owners;'  The  claims  of  all  per- 
sons having  rights  in  the  land  are  clearly  to  be  satisfied,  as  well 
thtfse  who  have  the  reversionary  interest  as  those  having  the 
present  estate.  Nor  is  there  any  pretence  that  any  proceedings 
have  been  had  directly  with  the  complainants,  and  for  the  reason 
that., the  defendants  do  not  appear  to  have  understood  how  the 
title  to  the  property  stood,  or  that  any  other  person  than  the  wi- 
dow had  a  claim  to  it. 

The  only  serious  question  raised  by  the  defendants,  is,  that 
these  complainants,  who  are  the  children  of  Martha  Ross,  and 
several  of  whom  have  acted  for  her  in  obtaining  damages  from 
the  company,  stood  by  and  saw  the  company  go  on  blindfold, 
under  a  conviction  that  their  mother  had  the  estate  in  fee,  and 
that  after  having  thus  acted  and  concealed  their  title,  they  have 
forfeited  all  claim  to  the  equitable  interference  of  the  court.  A 
number  of  cases  were  cited,  establishing  beyond  question  the 
doctrinej  not  merely  that  the  court  will  refuse  its  aid  to  a  party 
who  fraudulently  misrepresents  his  title,  but  if  ho  observes  a  si- 
lence when  duty  and  candor  and  fair  dealing  require  him  to 
speak  out.  The  case  in  2  Aikyns^  49,  was  of  this  character. 
There  the  mortgagee  stood  by  and  saw  the  lands  agreed  to  be 
settled  by  the  mortgagor  to  secure  the  terms  of  a  marriage  con- 
tract, and  fraudulently  concealed -his  mortgage  :  it  was  held  that 
the  land  should  be  held  against  the  mortgagee  and  his  heirs.  So 
in  2,  Aikyns  83,  where  a  person  having  title  to  land  suf- 
fered another  to  go  on  and  erect  buildings  upon  it  under  a  mis- 
take, without  informing  him  of  his  error,  and  when  he  knew  he 
was  doing  so  under  a  mistake,  it  was  decided  that  the  land  should 
be  held  without  disturbance  from  this  title.  The  doctrine  ia  fairly 
stated,  and  the  cases  referred  to,  in  1  John.  Chan.  355.  The 


JULY  TERM,  1841.  435 


Ross  et  ftl.  v.  Eliz.  Town  and  Some:  ville  Railroad  Co. 


chancellor,  in  that  case,  says,  "  There  is  no  principle  better  es- 
tablished in  this  court,  nor  one  founded  on  more  solid  considera- 
tions of  equity  and  public  utility,  than  that  which  declares,  that 
if  one  man  knowingly,  though  he  does  it  passively  by  looking 
on,  suffers  another  to  purchase  and  expend  money  on  land,  un- 
der an  erroneous  opinion  of  title,  without  making  known  his 
claim,  he  shall  not  afterwards  be  permitted  to  exercise  his  legal 
right  against  such  person.  It  would  bo  an  act  of  fraud  and  in- 
justice, and  his  conscience  is  bound  by  this  equitable  estoppel." 
In  1  Story's  Equity,  379,  the  same  principle  is  recognized,  and 
it  is  said  to  proceed  on  the  ground  of  its  being  a  constructive 
fraud.  There  is  something  in  this  doctrine  which  must  meet  the 
approbation  of  every  intelligent  man,  and  its  application  to  the 
case  before  us  is  striking.  If,  therefore,  these  complainants  have 
stood  by,  concealing  their  title,  and  have  seen  the  defendants 
taking  steps  to  ascertain  the  damages  to  be  paid  their  mother, 
under  a  mistaken  idea  that  she  was  the  sole  owner,  and  have 
not  undeceived  them,  even  though  they  may  never  have  been 
inquired  of  respecting  it ;  they  cannot,  under  the  authority  of 
the  cases  referred  to,  and  should  not,  have  the  aid  of  this  court 
now  to  enforce  a  further  payment  to  them,  or  to  embarrass  the 
progress  of  the  company.  This  being  the  true  principle  which 
must  govern  this  case,  the  decision  must  turn  entirely  upon  the 
state  of  the  facts.  Did  the  complainants  conceal  their  title  from 
the  defendants,  or  not  \ 

On  the  part  of  the  defendants,  as  well  by  the  answer  as  by 
the  affidavits  of  the  officers  aud  directors,  it  is  manifest  that  the 
company  have  acted  under  a  total  misapprehension  as  to  the 
true  state  of  things  respecting  this  land.  They  supposed  Martha 
Itoss  was  the  owner  in  fee,  and  accordingly  treated  with  her  in 
that  right  The  commissioners  certainly  made  their  award  un- 
der that  idea,  and  the  complainants,  or  some  of  them,  acted  a* 
tho  agent  of  their  mother,  and  advissd  in  all  her  proceeding*. 
The  affidavits  of  those  who  acted  on  the  part  of  the  company, 
are  explicit  that  they  acted  throughout  under  tin's  mistake,  and 
they  deny  having  received  any  information  to  the  contrary.  li 


136  CASES  IN  CIIAXCEET, 

Boss  etal.  v.  Eliz.  Towri  aud  Somerville  llailrouJl  Co. 

the  evidence  stopped  here,  there  could  be  no  hesitation  in  putting 
an  end  to  this  injunction  ;  biit  we  are  to  look  to  the  affidavits 
presented  on  the  other  side,  and  I  must  say,  if  those  affidavits 
are  correct,  there  has  been  the  most  unaccountable  blindness  on 
the  part  of  the  managers  of  this  company  that  I  have  ever  wit- 
nessed. They  must  have  shut  their  eyes  fatally  to  their  own 
interest,  or  they  surely  would  never  have  gone  against  know- 
ledge to  their  own  injury.  I  can  reconcile  the  affidavits  on  the 
part  of  the  complainants,  with  the  course  of  the  defendants,  in 
no  other  way  than  by  supposing,  if  the  information  was  ever 
communicated  to  them,  it  passed  from  their  memory.  The  affi- 
davits on  the  part  of  the  complainants,  show  that  the  situation  of 
the  title  to  this  property  was  no  secret ;  every  person  in  the  neigh- 
borhood knew  it  had  belonged  to  John  Ross,  and  was  assigned  to 
Mrs.  Ross  as  her  dower  right.  All  the  witnesses  concur  in  this. 
They  show  that  John  "W.  Bray,  who  at  one  time  acted  for  tho 
company,  and  in  one  case,  as  testified  to,  obtained  an  agreement 
for  land  under  which  they  have  entered,  was  informed  of  the 
true  condition  of  the  title  to  this  property,  and  made  full  inquiry 
into  the  situation  of  the  family.  This  evidence  is  not  contradict- 
ed. They  show,  and  by  several  witnesses,  that  at  the  time  tho 
commissioners  were  appointed  by  the  chief  justice,  the  subject 
of  the  title  not  being  in  Mrs.  Ross  was  spoken  of,  and  the  wit- 
nesses say  it  was  assigned  as  a  reason  why  a  settlement  coul, 
not  be  made  at  that  time,  as  only  one  of  the  heirs  was  present 
that  it  was  stated  publicly  in  the  room  where  a  number  of  thos,1 
interested  in  the  company  were,  and  was  spoken  of  as  a  thinr, 
well  understood  by  all.  They  show,  that  when  the  commission- 
ers met,  judge  Stites,  one  of  tho  commissioners,  asked  John 
Ross,  one  of  the  sons,  if  the  title  of  the  lot  was  in  Mrs.  Ross, 
and  he  answered  that  it  was  not ;  that  Mr.  Parker,  one  of  tho 
commissioners,  then  said,  it  was  not  their  business  to  try  titles, 
but  to  ascertain  the  amount  of  the  damages.  Judge  Stites,  in 
his  deposition,  admits  that  he  did  make  the  inquiry  about  tho 
title,  and  was  informed  that  it  was  not  in  Mrs.  Ross,  but  that 
•omething  was  said  which  gave  a  check  to  further  explanation, 


JULY  TERM,  1841.  437 


Ross  et  al.  v.  Eliz.  Town  and  Somerrille  Railroad  Co. 

and  lie  did  not  press  the  inquiry,  supposing  it  might  involve  a 
question  of  delicacy  between  Mrs.  Ross  and  her  children.  O. 
Morton,  in  his  affidavit,  says,  that  in  the  month  of  April  he  had 
a  conversation  on  this  subject  with  judge  Taylor,  (who  is  admit- 
ted''to  have  been  among  those  authorized  to  act  on  the  part  of 
the  company,)  who  said  he  was  aware  that  Mrs.  Ross  could  not 
make  a  valid  title  to  the  property,  the  fee  simple  not  being  in 
her,  and  therefore  they  had  taken  another  course  and  obtained 
possession  through  commissioners.  John  IE.  Voorhies,  another 
witness,  says,  that  at  i;he  time  the  commissioners  met  he  had  a 
conversation  with  William  Thompson  and  John  J.  Bryant,  who 
were  acting  for  the  company,  or  one  of  them,  and  he  thinks 
with  both,  and  told  them  that  the  fee  simple  of  the  land  was  not 
in  Mrs.  Ross,  that  she  had  only  a  life  right,  and  that  they  mani- 
fested no  surprise  at  the  information,  but  seemed  to  be  aware  of 
it ;  and  he  thinks  he  has  on  other  occasions  mentioned  the  same 
fact  to  them.  Another  witness  also  states  that  he  communicated 
{he  same  information  to  Mr.  Kellogg,  who  was  acting  in  behalf 
cf  the  company  ;  and  Mrs.  Ross  swears,  that  she  on  more  occa- 
sions than  one,  gave  the  agents  of  this  company  notice,  that  she 
•did  not  own  the  fee  of  this  land,  but  that  it  belonged  to  her  chil- 
dren ;  and  several  of  the  complainants  have  also  sworn,  that 
they  never  have  asserted  to  any  person  that  their  mother  had  the 
title,  or  concealed  the  true  state  of  facts  respecting  the  property. 
This  is  the  outline  of  the  complainant's  affidavits.  Opposed  to 
nil  this,  the  agents  of  the  company  declare  they  never  did  re- 
ceive the  information  that  the  title  wss  not  in  Mrs.  Ross,  but 
always  acted  under  the  belief  that  she  had  the  entire  right. 
There  is  a  most  palpable  contradiction  in  the  affidavits,  and 
v.-hich  I  confess  J  am  wholly  unable  to  reconcile. 

Without  being  able  to  harmonize  this  evidence,  and  without 
meaning  to  say  which  is  right  and  which  is  wrong,  I  cannot  feel 
myself  at  liberty  to  reject  all  this  testimony,  and  to  declare  that 
the  complainants  have  concealed  the  situation  in  which  this  pro- 
perty stands,  so  as  to  forfeit  their  claim  to  the  aid  of  thia  court. 
There  is  too  much  affirmative  evidence  to  justify  me  in  such  a 


438  CASES  IN  CHANCERY, 

Ross  etal.  v.  Eliz.  Town  and  Somerville  Railroad  Co. 

course.  That  the  complainants  have  not  acted  with  that  be- 
coming frankness  which  they  should  have  done,  is  impressed 
forcibly  upon  my  mind  ;  but  still,  if  the  subject  was  talked  of  at 
the  time  the  commissioners  were  appointed,  and  at  the  time  they 
met,  was  repeatedly  stated  by  Mrs.  Hoss,  and  more  especial- 
ly if  there  be  any  truth  in  the  repeated  instances  named  in  which 
the  information  is  said  to  have  been  communicated  to  the  agents 
of  the  company,  then,  certainly,  it  is  going  too  far  to  say  that 
there  has  been  such  a  concealment  as  to  defeat  the  complainants 
on  the  ground  of  fraud.  *  . 

Tlio  complainants,  then,  in  my  view  of  this  case,  are  entitled 
to  have  their  damages  paid  or  tendered,  before  the  defendants 
can  lavrfully  take  possession  of  the  land,  unless  it  be  shown  that 
they  have  been  guilty  of  a  fraud  in  concealing  their  title ;  the 
evidence  not  being  satisfactory  on  that  point,  I  do  not  feel  myself 
at  liberty  to  dissolve  the  injunction. 

There  is  one  fact  that  should  be  referred  to,  and  that  is,  that 
the  complainants  delayed  giving  a  written  notice  of  their  claim 
until  their  mother  had  been  paid,  and  then  promptly  served  one. 
This  has  a  bad  appearance,  and  can  only  be  excused  on  the 
ground  that,  until  that  took  place,  they  were  in  no  danger  that 
the  company  would  enter  upon  the  land.  This  part  of  the  case 
must  still  depend  on  the  question  already  decided,  whether  tho 
complainants  practised  a  fraud  by  concealing  their  title. 

Motion  to  dissolve  the  injunction  denied.  Costs  to  abide 
the  event.  « 

CITI-.D  IN  State  v.  E.&8.  R.  B  Co.  V  Vr.  185 ;  Carlisle  v.  Cooper,  6  C. 
K  Or.  091. 


WILLIAM  CHETWOOD  v.  STEPHEN  P. 

The  obligor  of  a  bond  will  not  l.e  admitted  to  prove  by  parol,  that,  at  the  time 
of  giving  tho  bond,  it  was  agreed  that  the  obligee  should  look  to  another 
source  for  pnyment,  nnd  thnt  t  e  obligor  should  not  be  personally  liable. 

Whatevi  r  the  contracting  parties  reduce  to  writing,  must  bo.  considered  as 
embodying  their  understanding  at  that  time.  If  by  fraud,  or  mistake,  or 


JULY  TERM,  1841.  409 


Chetwood  v.  Brittan. 


accident,  the  paper  should  not  contain  the  true  agreement  or  the  Thole 
t  prcement,  it  may  ba  supplied  by  parol. 

Evidence  will  not  be  admitted  of  what  took  place  at  the  time  of  executing  a 
written  agreement,  to  add  to  or  vary  the  contract.  A  written  agreement 
cannot  bo  varied  by  parol  evidence,  unless  in  cases  \vhere  there  is  a  clear 
subsequent  and  independent  agreement,  varying  the  former. 

Eut  it  Keoms  that  the  objection  to  varying  a  written  agreement  by  parol,  rest* 
merely  on  the  rules  of  evidence.  If  a  defendant,  by  his  answer,  admits  th» 
charge  in  the  bill,  that  at  the  time  of  executing  a  bond,  it  was  verbally 
agreed  that  the  complainant  shonl  .  not  be  personally  liable  for  the  money, 
will  not  equity  give  relief  against  a  recovery  on  the  bond?— Quere. 

The  continuance  of  an  injunction  must  always  rest  in  d  scretion,  not  arbitra- 
ry, but  controlled  by  established  rales.  The  equity  of  the  bill  mny  be  j\n- 
Bwcrod,  and  yet  the  court  will  continue  the  injunction  to  the  hearing,  espe- 
cially if  the  dissolution  v.'ould  work  a  greater  injury  than  a  continuance  of 
the  process. 

Injunc.ion  continued  upon  terms. 

BILL,  filed  25th  of  February,  1840,  states,  that  a  short  time 
previous  to  May  16th,  A.D.  1836,  Aaron  L.  Middlcbrook  enter- 
ed into  an  agreement,  as  complainant  was  informed,  to  purchase 
from  Stephen  P.  Brittan,  the  defendant,  a  tract  of  land  contain- 
ing about  twenty-three  acres  and  three  quarters,  situate  about 
half  a  milo  from  Elizabeth-Town:  that  the  price  was  three 
hundred  dollars  or  more  per  acre,  and  upwards  of  two  hundred 
dollars  more  per  acre  than  the  defendant  paid  for  the  same :  that 
the  complainant  agreed  to  join  Middlebrook  in  the  purchase ;  but 
when  the  company  was  formed  to  take  said  property  in  shares, 
as  herein  after  mentioned,  complainant  disposed  of  his  right  to 
take  a  part,  but  never  received  one  cent  for  the  same,  and  has 
no  expectation  of  ever  receiving  any  thing  :  that  before  any  deed 
was  given  for  said  property,  Middlebrook  procured  one  Jonathan 
D.  Williamson  to  form  a  company  to  take  said  land  in  shares ; 
that  a  company  was  made  up.  and  complainant  was  offered  a 
share,  but  declined  taking  any :  that  some  time  af  terwards,  Mid- 
dlebrook and  Williamson  called  at  complainant's  office,  and  wigh- 
ed  complainant  to  take  a  deed  in  his  own  name  as  a  mere  stake- 
holder or  trustee  for  those  interested  in  the  property :  that  thoj 
informed  complainant  that  the  parties  interested  wished  the  deed 


440 


Chetwood  v.  B-ittan. 


to  be  made  out  to  him,  lie  having  no  interest  therein,  that  he 
would  be  a  mere  stake-holder,  and  need  do  nothing  more  in  the 
business  than  merely  sign  deeds  when  any  part  of  the  property 
should  be  sold,  and  that  they  intended  to  lot  oft'  the  land  and 
sell  it  without  delay,  and  pay  the  defendant  the  remainder  of  the 
purchase  money  out  of  the  proceeds  of  the  first  sales.  That  the 
defendant  knew  of  all  these  circumstances,  arid  consented  there- 
to, and  particularly  that  complainant  had  no  interest  in  the  pro- 
perty, and  took  the  deed  as  a  mere  stake-holder,  and  often  so 
admitted.  That  about  May  IGth,  A.  D.  1836,  the  defendant 
called  at  complainant's  office,  and  said  he  had  those  papers  ready, 
and  produced  a  deed  executed  by  himself  and  wife  for  the  said 
premises,  and  duly  acknowledged,  bearing  date  May  16th,  A.D. 
1836  :  that  at  the  same  time  the  defendant  produced  a  bond  and 
mortgage  on  said  premises,  to  be  executed  by  complainant  to 
him,  for  the  balance  of  the  purchase  money,  he  having  received 
about  two  thousand  dollars  thereof  from  Middlebrook  and  Wil- 
liamson :  that  complainant  objected  to  execute  the  bond,  as  he 
had  no  interest  in  the  property,  but  the  defendant  informed  him 
he  need  be  under  no  apprehension  of  trouble  or  difficulty  as  to 
liability,  as  he  would  take  the  land  or  look  to  the  land  at  any 
time  for  the  balance  of  the  consideration  money :  upon  which 
assurance  of  the  defendant,  complainant  was  induced  to  sign 
Raid  bond  and  mortgage.  That  the  defendant  had  the  crops 
growing  on  said  land  the  year  he  sold  it :  that  he  received  from 
Williamson  and  Middlebrook  the  avails  of  subsequent  crops  of 
the  said  land,  and  the  proceeds  of  the  sale  of  the  same  under  a 
decree  of  the  court  of  chancery,  amounting  to  eighteen  hundred 
dollars,  so  that  he  realized  more  than  four  thousand  dollars  from 
said  property.  That  after  the  execution  of  the  said  bond,  the 
defendant  from  time  to  time  had  interviews  with  the  persons  in- 
terested in  the  property,  and  extended  the  time  of  payment  of 
the  interest,  and  in  some  cases  took  notes  from  them  for  interest 
due,  without  consulting  complainant,  and  never  asked  complain- 
ant to  make  any  payment  on  said  bond,  nor  ever  intimated  to 
complainant  that  he  looked  to  him  for  any  part  of  the  same,  and 


JULY  TERM,  1841.  441 


Chetwood  v.  Briitan. 


managed  the  business  in  liis  own  way  until  after  the  mortgaged 
premises  were  sold,  although  at  the  time  of  said  sale  the  bond 
had  been  due  some  time.  That  after  the  premises  were  sold 
under  the  decree  upon  the  mortgage,  the  defendant  offered  the 
persons  interested  in  the  lands,  that  if  they  would  pay  the  resi- 
due of  the  purchase  money,  he  would  throw  off  seven  or  eight 
hundred  dollars,  and  would  take  their  several  notes  endorsed  by 
others  for  their  respective  proportions  of  said  balance  after  said 
deduction.  That  after  said  bond  and  mortgage  were  given,  and 
interest  due  thereon,  the  defendant  borrowed  one  thousand  dol- 
lars of  complainant,  and  gave  his  note  therefor,  payable  in  six 
months,  with  interest :  that  he  paid  the  interest  and  three  hun- 
dred dollars  of  the  principal  of  said  note  when  it  became  due, 
and  would  have  paid  the  whole  amount  if  required,  but  as  com- 
plainant did  not  want  it  at  that  time,  the  defendant  gave  com- 
plainant his  note  for  seven  hundred  dollars,  payable  in  six  mouths 
with  interest ;  and  although  interest  was  due  on  said  bpnd,  and 
as  complainant  believes  the  principal  also,  when  the  money  was 
borrowed  and  when  it  became  due  and  part  thereof  paid  and  the 
new  note  given,  the  defendant  never  intimated  to  complainant 
that  he  looked  to  him  for  payment  of  any  part  of  the  said  bond, 
nor  suggested  to  him  to  apply  any  part  of  the  monies  secured  by 
the  said  note  to  the  payment  of  any  part  of  the  interest  or  prin- 
cipal of  said  bond :  that  the  complainant  had  no  idea  that  the 
defendant  would  ever  attempt  to  make  him  personally  responsible 
on  said  bond,  or  trouble  him  with  any  suit  on  the  same.  That 
afterwards,  the  defendant  filed  a  bill  of  privilege  in  the  supremo 
court  on  the  said  bond  against  the  complainant,  to  recover  from 
him  the  balance  alleged  to  be  due  thereon.  Bill  prays  an 
injunction  to  restrain  defendant  from  proceeding  in  the  suit 
against  the  complainant,  and  also  from  assigning  the  said  bond 
to  any  other  person,  and  such  other  relief,  &c. 

On  filing  the  bill  an  injunction  was  allowed  by  the  chancellor. 
On  the  14th  of  July,  1840,  the  defendant  filed  a  demurrer,  whicb 
was  subsequently  withdrawn  by  leave  of  the  court,  and  an  an 
swer  filed. 
57 


442  CASES  IE"  CHANCERY, 

Chetwordv.  Brittan. 

The  answer  admits,  that  on  the  13th  of  May,  1836,  the  defend- 
ant rhade  an  agreement  in  writing  with  Aaron  L.  Middlebrook,  to 
sell  him  about  twenty-seven  acres  of  land  about  one-fourth  of  a 
mile  from  Elizabeth-Town,  at  two  hundred  and  seventy-five  dol- 
lars per  acre,  and  that  on  or  about  the  16th  day  of  the  same  month 
the  defendant  and  his  wife,  by  the  request  of  Middlebrook,  con- 
veyed to  the  complainant  about  twenty-four  acres  of  the  land  so 
agreed  to  be  sold  to  Middlebrook ;  and  at  about  the  same  time,  at 
the  like  request,  he  conveyed  the  balance  of  the  tract  to  Jonathan 
D.  Williamson ;  and  for  the  balance  of  the  purchase  money  for  the 
said  sale  and  conveyance  to  the  complainant,  the  defendant  re- 
ceived from  the  complainant  his  bond  or  obligation,  bearing  date 
the  16th  day  of  May,  1836,  conditioned  for  the  payment  of  four 
thousand  five  hundred  and  seventy-six  dollars  and  sixty-nine 
cents,  in  one  year,  with  interest  payable  semi -annually,  which 
bond  was  secured  by  a  mortgage  of  the  same  date,  executed  by 
the  complainant  and  his  wife,  on  the  land  conveyed  to  him  as 
aforesaid.  That  the  land  so  agreed  to  be  sold  to  Middlebrook,  was 
purchased  by  defendant  several  years  before  the  sale  to  Middle- 
brook,  and  for  some  years  prior  to  the  sale  produced  annually  per 
acre  the  interest  of  tliree  hundred  dollars.  That  the  said  land 
cost  the  defendant  nearly  one  hundred  dollars  par  acre,  including 
improvements,  and  the  part  conveyed  to  Williamson  cost  one 
hundred  and  fifty  dollars  per  acre,  exclusive  of  improvements. 
.  Denies  that  defendant  was  to  receive  from  the  sale  upwards  of 
two  hundred  dollars  per  acre  more  than  the  land  cost,  including 
improvements.  The  agreement  to  purchase  of  this  defendant, 
made  by  Middlebrook,  was  made  for  himself,  and  no  other  per- 
son was  then  known  to  defendant  to  be  concerned  with  him,  and 
as  defendant  is  informed  and  believes,  the  complainant  agreed 
with  Middlebrook  to  become  interested  as  one  of  the  purchasers, 
and  after  said  agreement  with  other  persons  interested  therein, 
sold  out  their  interest  in  the  same  to  Jonathan  1).  Williamson 
and  others,  at  the  rate  of  four  hund-ed  dollars  per  acre,  and  tha'. 
complainant  sold  his  interest  in  the  same  for  at  loast  seven  hun- 
dred dollars  more  than  it  cost  him.  Admits  that  it  may  be  truo 


JULY  TERM,  1841.  443 


Chetwood  v.  Brittan. 


that  complainant  has  received  nothing,  and  expects  to  receive 
nothing  for  his  share  so  sold  ;  and  that  it  may  be  true  that  Mid- 
dlebrook  did  procure  Williamson  to  form  a  company  to  take  the 
land  conveyed  to  the  complainant  in  shares,  that  a  company  was 
formed  for  that  purpose,  and  that  complainant  was  offered  a 
share  or  shares  and  declined  taking  any,  that  Middlebrook  and 
Williamson  wished  complainant  to  take  a  deed  in  his  name, 
and  hold  the  same  as  trustee  or  stake-holder  for  the  purchasers, 
but  denies  that  defendant,  at  or  before  executing  his  deed  to  the 
complainant,  was  acquainted  with  the  plans  or  arrangement  of 
selling  and  dividing  the  lands,  or  that  he  had  anything  to  do 
therewith,  or  that  the  complainant  was  in  any  manner  a  trustee 
for  the  defendant,  or  authorized  so  to  act  for  him,  or  that  the 
defendant  at  the  time  of  executing  the  deed  to  the  complainant, 
or  at  any  time  since,  was  in  any  way  interested  in  the  lands  con- 
veyed by  him  to  complainant  other  than  as  mortgagee  thereof. 
Admits  that  it  may  bo  true  that  Middlebrook  and  Williamson 
represented  to  complainant  that  he  was  to  be  a  mere  stake-holder 
or  trustee  for  the  purchasers,  and  need  only  sign  deeds  when  any 
part  of  the  property  was  sold,  that  they  intended  to  sell  without 
delay,  and  that  the  balance  of  the  purchase  money  would  be 
paid  out  of  the  proceeds  of  the  sales,  but  denies  any  knowledge 
thereof  or  participation  therein.  The  answer  further  states,  that 
the  son  of  the  complainant  had  been  employed  by  the  defendant 
as  his  attorney  and  counsellor  for  several  years  previous  tp  the 
said  sale  by  the  defendant  and  defendant  having  full  confidence  in 
his  accuracy,  employed  him  to  prepare  the  deed  executed  by  the 
defendant  and  his  wife  to  the  complainant,  as  stated  in  the  bill 
of  complaint,  and  that  if  the  consideration  for  the  sale  is  omit- 
ted in  the  deed  of  conveyance,  such  omission  defendant  belie- 
ves was  accidental.  Denies  that  the  omission  was  by  the  direction 
knowledge  or  consent  of  the  defendant  States  that  tho  bon~ 
and  mortgage  given  to  the  defendant  by  the  complainant,  were 
drawn  by  the  complainant's  son.  Denies  that  the  said  bond  and 
mortgage  were  delivered  on  any  tenns  or  conditions  inconsistent 
with  the  absolute  delivery  thereof.  Admits  that  after  the  papers 


444  CASES  IN  CHANCERY, 


Chetwood  v.  Brittan. 


were  executed,  and  at  the  time  they  were  exchanged,  ti.o  com- 
plainant said  to  the  defendant,  in  a  pleasant  way, "  Now,  judge, 
I  hope  you  will  look  to  the  land  first,  before  you  call  on  me  for 
the  bond ; "  and  that  defendant  said  he  would  do  so  if  the  com- 
plainant wished  it,  which  defendant  considered  as  a  friendly  act 
toward  complainant  and  no  part  of  the  bargain.  Denies  that 
the  defendant  engaged  to  look  to  the  land  and  not  to  the  com- 
plainant for  the  payment  of  the  purchase  money,  or  that  defend- 
ant made  any  other  promise  than  as  before  stated.  Admits  that 
the  defendant  received  from  Middlebrook  and  Williamson,  in 
promissory  notes,  one  thousand  nine  hundred  and  fifty  nine  dol- 
lars and  thirty  cents,  on  account  of  the  purchase  money  of  said 
land,  making,  with  the  amount  secured  by  the  complainant's 
mortgage,  the  whole  consideration  for  which  said  lands  wer3 
conveyed  to  the  complainant.  Denies  that  at  the  time  of  exe- 
cuting the  said  bond  and  mortgage,  or  at  any  other  time,  de- 
fendant agreed  to  take  back  the  land,  or  to  look  to  the  land  at 
any  time  for  the  balance  of  the  consideration  money.  States 
that  it  was  a  part  of  the  defendant's  contract  with  Middlebrook, 
that  defendant  should  have  all  the  crops  then  growing  on  the 
land,  which  defendant  gathered,  but  that  he  has  received  no 
other  crop  or  profit  except  some  pasture  amounting  to  thirteen 
dollars  and  twenty-eight  cents,  which  was  credited  to  the  com- 
plainant. Admits  that  the  mortgaged  premises,  upon  a  bill  filed 
by  this  defendant,  were  sold  by  the  sheriff  of  the  county  of  Es- 
sex upon  a  decree  of  this  court,  and  that  the  defendant  received 
one  thousand  seven  hundred  and  twenty-four  dollars  and  fifty- 
four  cents  arising  from  said  sale,  and  no  more.  States  that  after 
complainant  agreed  to  become  interested  withMiddlebrook  in  the 
purchase  from  defendant,  the  complainant  a.nd  those  interested 
with  him  sold  out  their  interest  to  a  company  for  three  thousand 
dollars  above  what  the  land  was  purchased  for,  for  which  they 
received  certain  promissory  notes  in  payment ;  and  that  when  the 
complainant  agreed  to  take  the  deed,  it  was  agreed  by  tfce  pur 
chasers  to  indemnify  him  from  any  loss  in  consequence  of  hie 
taking  the  deed  and  giving  his  bond  and  mortgage.  Admits 


JULY  TERM,  1841.  445 


Chetwood  v.  Brittan. 


that  about  the  time  the  money  secured  by  the  complainant's 
bond  and  mortgage  was  becoming  due,  the  defendant  was  called 
on  by  some  of  those  interested  in  the  purchase,  to  know  if  he  in- 
tended to  foreclose  his  mortgage  if  the  money  should  not  be  im- 
mediately paid,  to  whom  defendant  stated  that  if  the  interest  was 
paid  he  would  not  press  for  the  principal ;  soon  after  which  this 
defendant  received  from  complainant  one  hundred  and  fifty  dol- 
lars, and  no  more,  which  was  endorsed  on  the  bond.  That 
he  was  subsequently  applied  to  by  the  same  persons  to  know  if 
he  would  not  take  the  land  back,  which  the  defendant  refused  to 
do,  but  consented  that  if  he  could  be  paid,  principal  and  inter- 
est, or  if  they  would  satisfy  the  complainant  and  pay  the  interest 
on  the  bond,  that  he  would  credit  five  hundred  dollars  on  the 
bond ;  one  of  which  propositions  this  defendant  supposed,  from 
the  expression  used  by  those  calling  on  him,  would  have  been 
accepted.  States  that  defendant  urged  upon  complainant  to  pro- 
cure the  bond  of  indemnity  from  those  interested  in  tho  land, 
and  from  friendly  feelings  for  complainant  offered  to  take  the 
bond  and  endeavor  to  get  it  executed,  which  he  did,  but  without 
success.  Denies  receiving  any  note  or  money  for  interest  on 
said  bond  except  as  before  stated.  States  that  in  October,  1S3T, 
the  defendant  (being  urged  thereto  by  complainant)  took  from 
the  complainant  by  way  of  loan  one  thousand  dollars  for  six 
months ;  that  at  its  maturity  and  afterwards  defendant  was  desi- 
rous to  pay  off  the  note,  but  complainant  declined  taking  it.  De- 
fendant insisted  on  paying  three  hundred  dollars,  and  for  the 
balance  due  on  said  note  to  the  complainant,  on  the  22d  day  of 
June,  1833,  the  defendant  gave  his  note  to  the  complainant  for 
seven  hundred  dollars,  at  six  months.  Denies  that  this  tempora- 
ry loan  was  in  any  wise  to  effect  the  complainant's  bond  to  the 
defendant.  Admits  that  it  may  bo  true  that  nothing  was  said, 
on  giving  said  notes,  about  the  complainant's  bond  to  the  defend- 
ant, as  he  had  promised  first  to  proceed  against  the  land,  nor 
was  any  thing  then  said  respecting  a  note  for  five  hundred  and 
seventy-two  dollars  which  defendant  then  held  against  tho  com" 
plainant  and  his  son.  Admits  the  filing  of  a  bill  of  privilege 


446  CASES  IN 


Chct\roorl  v.  Britten. 


against  the  complainant  for  the  recovery  of  the  money  due  on 
the  bond.  Insists  that  defendant  has  said  or  done  nothing  which 
should  preclude  or  bar  him  from  proceeding  in  his  action  against 
the  complainant  to  recover  the  balance  due  on  the  bond,  and  that 
the  injunction  ought  to  be  dissolved.  The  answer  further  states, 
that  since  the  filing  of  the  bill  of  complaint  in  this  cause,  the 
complainant  has  prosecuted  the  defendant  at  law  to  recover  tho 
promissory  note  for  seven  hundred  dollars  given  by  the  defendant 
to  the  complainant ;  that  the  defendant  appeared  to  the  said  ac- 
tion, and  gave  notice  that  he  would  set  off  so  much  of  the  bal- 
ance due  on  the  bond  as  would  be  sufficient  to  satisfy  the  note, 
and  would  claim  the  balance,  and  that  the  said  suit  is  still  pend- 
ing undecided.  Defendant  has  no  recollection  or  belief  that 
after  the  sale  of  the  said  mortgaged  premises  he  ever  authorized 
the  said  Aaron  L.  Hiddlobrook,  (who  married  this  defendant's 
daughter  sometime  after  the  execution  of  the  said  article  of 
agreement,)  to  throw  off  any  sum  whatever  of  the  balance  duo 
on  the  said  bond,  or  to  take  any  person's  notes  for  the  same. 

The  cause  came  on  for  hearing  upon  motion  on  behalf  of  tho 
defendant  to  dissolve  the  injunction,  upon  bill  and  answer,  be- 
fore the  chancellor,  at  Newark,  on  the  fifth  day  of  May,  1841. 

E.  Vanarsdale  and  /.  H.  Williamson,  for  defendant. 
W.  Chetwood  and  0.  8.  Hoisted,  for  complainant. 

Cases  cited  by  the  counsel  of  the  defendant,  in  support  of  ths 
motion : — Eden  on  Inj.  11 ;  1  John.  Chan.  It.  282 ;  3  Camp- 
Ml,  57 ;  3  Bam.  and  Aid.  233  ;  8  John.  Rep.  193 ;  13  Mass. 
99,  172 ;  7  Mass.  518 ;  1  Vesey  241 ;  Saxton,  393,  498,  402 ; 

1  Grreen,  165 ;  3  Green,  116 ;  1  John.  CJian.  E.  343 ;  1  Bay. 
461 ;  3  Wilson,  275 ;  1  Brown's  Chan.  j?.  92 ;  2  Hid,  219 ; 

2  John.  Chan.  R.  559 ;  4:  Browrfs  Chan.  JR.  514 :  7  Vcs.  211. 

Cases  cited  by  the  counsel  of  tho  complainant,  contra  : —  Wy- 
Prac.  Reg.  201-2 ;  2  John.  Chan.  R.  205  ;  Hammond  's 


JULY  TERM,  1841.  417 


ChetTood  v.  B'  ittan. 


Dig  645  ;  1  VCB&J,  193  ;   1  Mwnford,  468  ;  1  Hopkins,  148 ; 
1  Atkyns,  516. 

THE  CHANCELLOR.  The  answer  having  been  filed,  I  am 
now  moved  to  dissolve  the  injunction  heretofore  issued  in  this 
cause.  Upon  this  motion  the  whole  merits  of  the  case,  as  they 
appear  upon  bill  and  answer,  have  been  discussed.  The  defend- 
jint  claims  to  succeed  in  his  application  upon  the  case  made  by 
the  bill  itself,  and  if  not,  then  upon  the  answer,  as  being  a  de- 
nial of  the  complainant's  equity. 

The  bill  presents  this  state  of  facts.  That,  in  May,  1836, 
Aaron  L.  Middlebrook  entered  into  an  agreement  with  the  de- 
fendant for  the  purchase  of  lands  at  Elizabeth-Town,  and  in 
v/hich  purchase  the  complainant  become  interested  with  him. 
Bofore  any  deed  was  given,  a  company  was  formed  to  take  the 
land  in  shares,  and  the  complainant,  not  wishing  to  be  one  of 
the  company,  parted  with  all  his  interest,  but  never  received  any 
tiling  and  has  no  expectation  of  ever  receiving  any  thing  for  it. 
The  complainant,  under  these  circumstances,  (his  interest  in 
the  premises  being  gone,)  was  called  upon  by  Middlebrook  and 
Jonathan  D.  Williamson,  (who  had  made  up  the  company  to 
take  the  land  as  before  stated,)  and  requested  to  take  a  deed  for 
the  property  in  his  own  name  as  a  stake-holder  or  trustee  for 
those  interested  in  it,  and  they  stated  that  the  parties  in  interest 
desired  him  to  do  so.  The  complainant  consented  to  this  course, 
and  the  defendant  accordingly  called  with  a  deed  executed  to  him 
for  the  property,  and  at  the  same  time  produced  to  the  complain- 
ant a  bond  and  mortgage  on  the  property,  to  be  executed  by 
him,  for  a  part  of  the  purchase  money.  The  complainant  at 
first  objected  to  signing  the  bond,  for  the  reason  that  he  did  not 
wish  to  bind  himself  for  other  men's  debts,  but  did  so  upon  the 
defendant's  informing  him  "  that  he  need  be  under  no  apprehen- 
sion of  trouble  or  diffculty  as  to  liability,  as  he  would  take  tho 
land  or  look  to  the  land  at  any  time  for  the  balance  of  the  con- 
sideration money,  and  that  he  was  to  receive  the  proceeds  of  tho 
sales  as  fast  as  lots  were  sold,  from  tho  purclxascrs."  There  arc 


CASES  IX  CHANCERY, 


Chetwood  v.  Brittan. 


various  other  allegations  in  the  bill,  but  ihis  is  the  material  ono 
upon  which  the  injunction  was  granted.  This  was  a  transaction 
during  the  time  when  speculation  in  real  estate  was  every  day's 
business,  and  for  almost  every  man  in  society,  in  some  parts  of 
the  country,  and  it  was  no  doubt  believed  that  in  no  possible 
event  could  the  complainant  be  subjected  to  any  loss  by  signing 
the  bond.  Eut  tilings  turned  out  otherwise,  and  after  selling 
tho  property  covered  by  the  mortgage,  there  remains  a  deficiency 
due  on  the  bond  of  rising  three  thousand  dollars.  For  this  mo- 
ney a  suit  has  been  instituted  at  law  by  the  defendant  against  the 
complainant  on  his  bond,  and  upon  the  above  state  of  facts  an 
injunction  was  issued  restraining  the  defendant  from  proceeding 
therein  until  the  further  order  of  this  court.  When  this  bill  was 
first  presented  to  me,  I  had  some  doubts  whether  the  complainant 
would  be  allowed  to  make  this  proof  even  if  in  his  power,  (should 
the  answer  deny  the  charge.)  as  being  a  violation  of  that  sound 
rule  of  evidence  which  forbids  a  contradiction  of  a  written  agree- 
ment or  deed  by  parol.  The  argument  on  this  point  has  con- 
firmed my  first  impressions,  that  to  allow  this  evidence  would 
endanger  the  security  which  must  belong  to  a  solemn  instrument 
and  render  our  rights  and  property  insecure.  The  complainant 
executes  under  his  hand  and  seal  a  bond  to  the  defendant,  and 
thereby  promises  at  a  certain  day  to  pay  him  so  much  money. 
The  evidence  to  be  offered  is,  that  at  that  very  time,  (not  at  a 
later  day  and  under  other  circumstances,)  the  complainant  was 
not  to  pay  the  money  on  the  bond,  but  the  defendant  agreed  to 
look  to  the  land  alone.  Does  not  this  come  in  direct  conflict 
with  the  writing  itself  ?  If  the  bond  was  not  to  bo  paid,  why 
was  it  given  ?  The  lien  by  way  of  mortgage  would  have  been 
as  complete  without  a  bond  as  with  it.  It  is  said,  indeed,  that 
the  complainant  does  not  deny  the  execution  of  the  bond,  or  any 
part  of  its  contents,  and  that  the  evidence  only  goes  to  show  the 
circumstances  under  which  it  was  given.  If  solemn  instruments 
might  bo  so  easily  obviated  by  parol  testimony  of  what  took  place 
at  the  time  of  their  execution,  and  that  too  in  direct  opposition 
to  the  terms  of  the  writing  itself,  I  confess  that  my  faith  in  their 


J  CILY  TERM,  1841.  440 


Chetwood  v.  Brittan. 


value  would  bo  greatly  sjiaken.  "Whatever  the  parties  reduce  to 
•writing  must  be  considered  as  embodying  their  understanding  at 
that  time.  If  by  fraud,  or  mistake,  or  accident  the  paper  should 
not  contain  the  true  agreement  or  the  whole  agreement,  then, 
undoubtedly,  it  may  be  supplied  by  parol.  In  this  case  there  is 
no  allegation  of  fraud ;  on  the  contrary,  it  is  admitted  that  the 
bond  was  executed  according  to  the  understanding  of  the  parties. 
There  was  no  deception  practiced  on  the  complainant,  nothing1 
omitted  in  it  that  should  have  been  inserted,  or  inserted  that  was 
not  so  intended  ;  but  the  whole  insistment  is,  that  although  the 
complainant  did  sign  and  seal  his  bond  for  so  much  money,  yet 
at  that  very  time  the  agreement  was  that  he  was  not  to  pay  it. 
This  is  letting  parol  proof  overcome  the  writing  and  the  seal  of 
the  party,  and  striking  at  the  foundation  of  the  security  in  in- 
struments of  this  character.  The  remark  of  chancellor  Kent  in 
2  Johns.  (7A.  557,  is  very  true,  when  he  says,  "  There  is  no- 
thing more  dangerous  than  to  impair  the  force  and  effect  of 
solemn  contracts  in  writing,  by  careless,  idle,  and  perhaps  un- 
meaning conversations."  And  it  is  added,  "  as  far  as  sucli  testi- 
mony is  in  contradiction  to  the  language  of  the  note  itself,  it  is 
utterly  inadmissible." 

The  cases  cited  from  1  Browns  Chan.  92,  and  2  Brown V 
Chan.  219,  are  very  much  alike,  and  bear  strongly  on  tins 
question.  Upon  settling  the  terms  of  annuity  it  was  agreed 
that  it  should  be  redeemable,  but  fearing  that  a  clause  for  re- 
demption, if  inserted,  might  affect  the  transaction  as  usurious,, 
it  was  omitted  in  the  writing.  Upon  a  bill  filed  to  redeem,  the 
evidence  of  the  agreement  to  redeem  was  rejected,  as  being  in: 
opposition  to  tho  written  contract.  The  lord  chancellor  suid,  If 
it  "was  agreed  not  to  insert  tho  clause  of  redemption,  evidence  to. 
that  purport  could  not  be  given,  but  if  it  was  left  out  by  fraud,, 
it  might  In  4  Brown's  Chan.  514,  the  case  was,  that  a  me- 
morandum had  been  drawn  up  for  a  lease  at  a  prescribed  rent,, 
omitting  any  thing  about  taxes,  and  when  the  lease  was  drawn 
the  words  "  clear  of  all  taxes  "  were  inserted.  Tho  court  would 
not  allow  the  lease  to  bo  corrected  by  the  memorandum.  Tho 
58 


450  CASES  IN  CHANCEKY, 


Chetwood  v.  Brittan. 


lord  chancellor,  in  Lis  opinion,  says  "  It  is  quite  impossible  to 
admit  the  rulo  of  law  to  be  broken  in  upon,  and  that  requires 
that  nothing  should  be  added  to  the  written  agreement  unless  in 
cases  where  there  is  a  clear  subsequent  and  indcpendant  agree- 
ment varying  the  former,  but  not  where  it  is  of  matter  passing 
at  the  same  time  with  the  written  agreement."  The  same  prin- 
ciple is  recognized  in  1  Jolin.  CJian.  282.  In  3  Ailcyns,  389, 
evidence  was  admitted  to  show  an  omission  in  a  lease,  but  that 
•was  on  a  bill  for  a  specific  performance,  and  the  evidence  was  of- 
fered to  rebut  an  equity.  In  such  a  case  great  latitude  is  allow- 
ed, and  the  court  will  look  into  evidence  of  this  character  against 
the  relief  sought.  It  appeared  further,  that  the  complainant  had 
drawn  the  lease  himself,  and  it  was  an  omission  on  his  part.  So 
in  2  Vesey,  sen.  299,  evidence  was  read  to  show  that  by  a  sub- 
sequent agreement  an  additional  sum  was  added  for  rent ;  but  it 
will  be  observed  this  was  a  subsequent  and  additional  agreement 
arising  upon  a  new  state  of  facts,  from  the  necessity  of  pulling 
down  the  house  and  erecting  a  new  one,  instead  of  repairing  the 
old,  as  were  contemplated  when  the  lease  was  drawn.  The  case 
in  2  Vesey,  sen.  370,  referring  to  this  case,  expressly  says,  the 
evidence  was  admitted  as  coming  in  on  a  new  agreement,  and 
the  case  is  therefore  an  authority,  as  I  think,  for  the  principle  as 
I  have  stated  it.  My  present  impression,  from  looking  into  the 
cases  and  the  principle  upon  which  the  rule  is  founded,  is,  that 
the  complainant  cannot  read  evidence  of  what  took  place  at  the 
time  of  executing  his  bond,  to  sustain  the  charge  in  the  bill  upon 
which  the  injunction  is  granted.  But  it  is  only  upon  the  rulo  of 
evidence  that  the  difficulty  exists,  and  the  danger  of  defeating  by 
parol  the  solemn  deed  of  a  party ;  for  suppose,  upon  the  bill  be- 
ing filed  the  defendant  had  admitted  the  facts  to  bo  as  the  com- 
plainant lias  stated  them,  could  not  this  court  have  given  the  re- 
lief Bought  ?  If  so,  then  the  injunction  was  properly  issued  until 
answer.  This  view  may  possibly  have  induced  the  learned 
counsel  to  withdraw  the  demurrer  which  was  originally  filed,  and 
•substitute  an  answer  in  its  stead. 

Although  counsel  have  argued  the  quection  as  to  the  admissi- 


JULY  TEKM,  1841.  451 


Chetwood  v.  Urittau. 


bility  of  this  evidence  on  the  present  motion,  which  seemed  to 
call  for  the  expression  of  some  opinion  from  me  upon  the  subject, 
and  perhaps  was  so  designed,  yet  I  deem  it  premature  to  conclude 
the  party  by  any  decision  until  the  evidence  is  offered ;  nor,  ia- 
deed,  can  I  undertake  to  say  what  kind  of  proof  the  complainant 
may  have  it  in  his  power  to  offer.  I  throw  out  these  views 
upon  this  part  of  the  case  therefore  now,  not  intending  to  decide 
the  point  so  as  to  preclude  the  complainant,  if  he  shall  think  pro- 
per so  to  do,  from  raising  the  question  on  the  final  hearing,  no* 
from  taking  the  testimony  with  that  view,  but  as  due  to  the  im- 
portance of  the  case,  and  a  desire  of  placing  the  difficulties,  as 
they  present  themselves  to  me,  fairly  before  the  complainant 
The  point  is  not  without  its  embarrassments,  and  I  should  be 
very  willing,  if  the  case  goes  farther,  to  investigate  it  more  fully. 
The  defendant's  answer  is  next  to  be  considered.  I  have  care- 
fully examined  it,  with  the  aid  of  the  ingenious  criticisms  placed 
upon  it  by  the  counsel  of  the  complainant,  whose  skill  ou  this 
subject  I  have  often  remarked,  and  I  can  still  view  it  in  no  other 
light  than  as  a  broad  denial  of  every  main  charge  in  the  bill 
The  substance  of  the  answer  is,  that  the  defendant  agreed  to  sell 
the  land  to  Middlebrook,  and  for  a  part  of  the  purchase  money 
was  to  have  a  bond  secured  by  mortgage,  on  the  same  premises. 
That  he  knew  nothing  of  the  arrangements  between  Middlebroofe 
and  the  complainant,  by  which  the  latter  was  to  take  the  deed 
and  give  the  bond  and  mortgage,  but  he  agreed  to  the  substitu- 
tion of  the  complainant  at  the  request  of  Middlebrook,  and  from 
the  knowledge  that  his  security  would  thereby  be  increased. 
The  answer  denies  that  the  defendant  did  at  the  time  of  the  exe- 
cution of  the  papers,  or  at  any  other  time,  agree  to  take  back 
the  land,  or  look  to  it  for  the  balance  of  the  consideration  money, 
nor  has  the  defendant  any  recollection  or  belief  that  the  com- 
plainant in  liis  presence  objected  to  giving  the  bond,  but  after 
the  papers  were  executed,  and  at  the  time  they  were  exchanged, 
the  complainant  said  to  him,  that  he  hoped  he  would  look  to  tho 
\snndjirstj  before  he  called  on  him  for  the  bond ;  to  which  the 
defendant  assented,  and  lias  accordingly  exhausted  his  remedy 


452  CASES  IN  CHANCEKY,, 

ChetwooJ  v.  Brittan. 

first  on  the  mortgage  before  prosecuting  this  bond.  That  this 
conversation  was  not  considered  as  in  any  way  affecting  the  bar- 
gain, but  as  a  mere  friendly  act  to  the  complainant.  This  is 
placing  the  subject  in  a  new  light,  and  takes  off  the  whole  point 
and  force  of  the  complainant's  allegation.  I  do  not  know  that  a 
stronger  case  than  this  to  exhibit  the  propriety  of  the  rule  con- 
fining parties  to  their  written  contracts,  could  be  made.  It  proves 
the  fallacy  of  human  memory,  and  how  liable  men  are  to  place 
a  construction  on  every  thing  that  passes  favorable  to  their  own 
interests  and  wishes.  The  elevated  character  of  these  parties 
forbids  the  idea  that  either  would  evade  the  truth  for  ten  times 
the  value  of  the  property  in  dispute,  and  yet  how  widely  they 
differ.  All  that  can  be  said  is,  that  the  equity  of  the  bill  is  fairly 
and  fully  met  by  the  answer. 

Under  thc*3  circumstances,  shall  this  injunction  be  further 
continued  ?  This  is  a  question  which  must  always  rest  in  discre- 
tion, and  yet  that  discretion  should  not  be  arbitrary,  but  yield  to 
well  established  rules.  The  equity  may  be  answered  and  yet 
the  court  will  continue  the  injunction  to  the-  hearing,  and  espe- 
cially so  if  a  dissolution  would  work  a  greater  injury  than  a 
continuance  of  the  process. 

In  view  of  all  the  circumstances  as  connected  with  this  case, 
after  thus  far  unfolding  my  present  views  upon  it,  I  consider  it 
my  duty  not  to  dissolve  the  injunction  at  this  time,  but  to  con- 
tinue it  to  the  hearing.  The  main  question  discussed  on  the  ar- 
gument does  not  really  arise  until  the  evidence  is  taken  in  tho 
cause,  and  it  would  be  in  a  measure  prejudging  a  party  thus  tc 
anticipate  the  complainant  on  this  part  of  the  case.  The  com 
plainant  has  further  sought  his  remedy  in  this  court,  and  if  lie 
fail  here  must  fail  every  where  ;  and  if  the  injunction  should  bf 
dissolved  under  the  prayer  as  it  now  stands  in  the  bill,  and  the 
defendant  should  go  on  with  his  suit  at  law  and  obtain  a  juclg 
mentt  though  a  decree  should  iinally  pass  for  the  complainant 
it  would  como  too  late.  I  incline,  therefore,  to  give  the  com 
plainant  a  fair  and  full  hearing  on  the  merits  of  his  cause,  anc 
oot  to  embarrass  and  defeat  the  object  of  his  suit  by  a  decisioi 


JULY  TERM,  1841.  453 


Chetwood  v.  Brittan. 


against  him  on  this  preliminary  question.  The  parties  arc  re- 
sponsible, and  no  danger  is  to  be  apprehended  by  the  short  delay 
necessary  for  taking  the  evidence.  The  injunction,  if  continued, 
must  however  be  upon  terms.  The  complainant  must  stipulate 
to  suspend  further  proceedings  upon  his  suit  against  the  defend- 
ant on  his  note,  until  this  cause  is  settled.  That  suit,  by  the 
pleadings  in  it,  is  connected  with  the  bond  referred  to  in  this 
case,  and  common  justice  requires  that  the  complainant  shall 
not  stop  the  defendant  from  proceeding  in  his  suit  and  yet  go  on 
in  his  own. 

The  injunction  continued  to  the  hearing,  and  the  costs  to  abide 
the  final  decision. 

CITED  in  Fleischman  v.  Young,  1  Stock.  620 ;  Durant  v.  Bacot,  2  JJeat. 

202 ;  Stotesburg  v.  Vail,  Id.  394  ;  Irish  v.  Black  and  L'ppincott  2  G. 

E.  Gr.  200  ;  Firmttone  v-  DeCamp.  Id.  31 6  ;  Murray  v.  EUton  8  G.  2 

Or.  129. 


SETII  GKOSVENOB  v.  The  FLAX  and  HEMP  MANUFACTURING 
COMPANY  and  others. 

The  selling  of  goods,  or  stock,  or  property  of  any  kind,  at  a  price  beyond  it* 
vain?,  ns  part  of  a  loan,  by  wny  of  cover  or  pretext  for  obtaining  more 
than  tlio  legal  rate  of  interest,  will  taint  the  whole  transaction  with  usury, 
and  destroy  the  validity  of  the  instruments  given  for  the  loan. 

Proof  that  part  of  the  loan  was  advanced  in  goods  or  stock,  will  not  throw  on 
the  opposite  party  the  burthen  of  proving  the  value  of  such  goods  or  stock. 
'1  he  person  charging  the  nsary  mast  prove  not  only  that  the  goods  or  stock 
constituted  a  part  of  the  loan,  bat  also  that  they  were  pat  off  at  a  price  be- 
yond their  value. 

BILL,  for  the  foreclosure  of  a  mortgage  given  by  the  Flax  and 
Hemp  Manufacturing  company  to  Edward  Kellogg,  to  secure 
the  payment  of  two  thousand  nine  hundred  and  ninety-four  dol- 
lars and  six  cents,  assigned  by  Kellogg  to  the  complainant 
The  bill  sets  forth  two  subsequent  mortgages  upon  the  same 
property,  both  dated  the  24th  of  October,  1838,  ono  of  which 
was  given  to  Jonathan  Thome,  to  secure  the  payment  of  ten 
thousand  dollars,  and  the  other  to  Sidney  B.  WLitlock,  to  secure 
the  payment  of  five  thousand  dollars.  The  defendants,  Thome 


454  CASES  IN  CHAJSTCERY, 

Grosvenor  v.  Flax  and  Hemp  Manufacturing  Co.  et  al. 

and  Whitenack,  answer,  setting  up  their  mortgages  as  incum- 
brances  upon  tlie  premises  described  in  the  bill  of  complaint.  At 
April  term,  1840,  a  final  decree  was  taken,  directing  all  tho 
mortgages  to  be  paid  out  of  the  mortgaged  premises,  in  the  order 
of  their  priority,  and  execution  was  thereupon  issued. 

On  the  12th  of  June,  1840,  on  the  petition  of  the  receivers 
appointed  by  the  chancellor,  for  the  stockholders  and  creditors  of 
the  said  the  Flax  and  Hemp  Manufacturing  company,  the  de- 
cree was  opened,  proceedings  on  the  execution  stayed,  and  the 
receivers  admitted  to  answer  the  complainant's  bill.  The  receiv- 
ers, by  their  answer,  admit  the  complainant's  mortgage,  but  in- 
sist that  the  mortgages  of  Thorne  and  Whitlock  are  usurious 
and  void.  The  facts  relied  on  as  constituting  the  usury,  appaar 
in  the  opinion  of  the  chancellor. 

The  cause  came  on  for  hearing  upon  the  pleadings  and  proofs, 
at  Newark,  on  the  21st  of  June,  1840. 

J.  J.  Chetwood,  for  complainant.. 

F.  B.  Chetwood  and  1.  H.  Williamson,  for  the  receivers. 

A,  Whitehead  and  E.  Vanarsdale,  for  the  defendants, 
Thorne  and  Whitlock. 

Cases  cited  by  the  counsel  of  the  receivers.  Douglass,  736  ; 
1  Esp.  Rep.  38  ;  2  Campbell,  375  ;  1  Paige,  613  ;  12  Wend- 
dell,  41;  1  Phillip?  Eo.  202;  1  Stork.  Eo.  47;  18  Wend- 
353. 


Cases  cited  by  the  counsel  of  Thorne  and  Whitlock.  1  Paige, 
863,  268  ;  1  Sch.  and  Lcf.  710,  718  ;  2  Ball  and  Beatty,  271  ; 
4  Peters,  205  ;  2  Campbell,  553  ;  Angel  and  Ames  on  Corp. 
394-5;  \  Fonl.  Jfy.  22,  233;  5  John  Chan.  R.  142;  1  Term 
£.  153  ;  Saseton,  364. 

THE  CHANCELLOR.  There  are  three  mortgages  involved  in 
this  cause,  made  by  the  Flax  and  Ilemp  Manufacturing  compa- 


JULY  TERM,  1841. 


Grosvcnor  v.  Flax  and  Hemp  Manufacturing  Co.  et  ol. 

ny  ;  one  bearing  date  the  27th  of  October,  1837,  to  Edwzird 
Kellogg,  and  by  him  assigned  to  the  complainant,  to  socuro  tho 
Burn  of  two  thousand  nine  hundred  and  ninety-four  dollars  and 
six  cents;  one  bearing  date  the  24th  of  October,  1838,  to  Jona- 
than Thoruc,  (a  defendant,)  to  secure  the  sum  of  ten  thousand 
dollars  ;  and  one  bearing  date  also  on  the  said  24th  of  October, 
1838,  to  Sidney  B.  "Whitlock,  (another  defendant,)  to  secure  tho 
sum  of  live  thousand  dollars.  The  complainant's  mortgage  :a 
undisputed  both  as  to  its  validity  and  priority,  and  must  of 
course  be  first  paid,  with  costs,  from  the  sale  of  the  property. 
The  Flax  and  Hemp  Manufacturing  company,  became  entan- 
gled and  insolvent  in  their  circumstances,  and  receivers  were 
appointed  to  settle  up  their  affairs  in  the  manner  prescribed  by 
law,  and  those  receivers,  who  are  also  made  defendants  in  this 
cause,  have  lilcd  an  answer  impeaching  the  two  mortgages  of 
Thorne  and  Whitlock,  as  usurious  and  void.  The  allegation  is 
that  the  two  mortgages  were  made  upon  one  contract,  and  that 
in  truth  they  both  belong  to  Thorne.  That  the  company,  be- 
ing imicluin  want  of  money,  applied  through  a  committee  to 
Mr.  Thorne,  to  make  them  a  loan  of  fifteen  tliousand  dollars, 
find  which  lie  agreed  to  do  provided  they  would  take  five  thou- 
sand dollars  in  the  stock  of  their  own  company  ;  thct  is  to  say, 
ten  thousand  dollars  in  money,  and  five  tliousand  dollars  in 
stock.  The  loan  was  accepted  and  made  on  these  terms.  Tho 
further  and  material  allegation  is,  that  this  stock  was  thus  forced 
by  Mr.  Thorne  upon  the  company  at  a  price  beyond  its  truo 
value,  and  made  a  cover  for  a  usurious  loan  ;  and  to  carry  ont 
his  plans,  and  for  greater  security,  he  divided  the  amount  loaned 
into  two  sums,  and  took  live  thousand  dollars  in  a  separate 
bond  and  mortgage  to  Mr.  Whitlock. 

The  amount  of  these  mortgages  is  large,  and  they  should  not, 
therefore,  be  declared  void  upon  slight  ground;  tho  evidence 
should  be  clear  and  decided.  The  statute  against  usury  must 
recicve  the  sanction  of  every  court  of  the  state,  tho  same  us  any 
other  law,  although  it  muy  at  times  produce  harsh  results.  My 
own  opinion  is  that  the  statute  is  necessary,  and  prevents  op- 


456  CASES  IN  CHANCERY, 

Grosvenor  T.  Flax  and  Hemp  Manufacturing  Co.  et  nl. 

pression.  The  law  upon  the  case,  as  stated  in  the  answer,  is 
also  well  settled,  and  that  is,  that  the  selling  of  goods,  or  stock, 
or  property  of  any  kind,  at  a  price  beyond  its  value,  as  part  of 
a  loan,  by  way  of  cover  or  pretext  for  obtaining  more  than  the 
legal  rate  of  interest,  will  vitiate  the  whole  transaction,  arid  de- 
stroy the  validity  of  the  instruments  given  for  the  loan.  The 
cases  cited  from  Douglass,  736,  and  1  Esp.  Hep.  38,  do  but 
express  the  well  settled  doctrine  on  this  subject.  The  whole 
question,  therefore,  turns  upon  the  facts  of  the  case.  Do  they 
sustain  the  allegations  made  against  these  mortgages  ?  That 
one  hundred  and  twenty-seven  shares  of  stock  was  taken  at  five ' 
thousand  dollars,  as  part  of  the  loan,  and  that  the  two  mort- 
gages really  relate  to  one  transaction,  is  abundantly  proved,  and 
nothing  can  be  plainer  than  that  dividing  this  loan  into  two  sets 
of  securities,  cannot  alter  the  rights  of  the  parties.  It  is  to  the 
contract  we  are  to  look,  and  if  that  embraced  the  entire  loan 
covered  by  both  mortgages,  then  both  the  mortgages  are  in  the 
same  position,  and  are  either  valid  or  invalid,  as  the  proof  may 
turn  out.  What,  then,  was  the  value  of  the  stock  at  the  time 
this  loan  was  made ;  and  was  it  worth  in  market  the  price  at 
which  the  company  took  it  from  Thorne,  or  not?  This  is  the 
great  question  in  the  cause.  That  a  party  producing  a  bond  and 
mortgage  made  in  due  form  of  law,  may  rest  his  claim  to  a  reco- 
very upon  them  without  proof  of  their  consideration  is  not  denied, 
but  a  case  is  cited  from  2  Campbell,  375,  which  maintains  that 
after  proof  is  made  that  a  part  of  the  consideration  was  in  goods 
or  stock,  the  onus  of  showing  that  the  stock  or  goods  were  worth 
the  price  at  which  they  are  taken,  is  on  the  holder  of  the  bond 
and  mortgage.  I  cannot  think  that  this  is  the  true  rule,  but  that 
the  party  alleging  the  usury  must  make  the  entire  proof,  not  only 
that  goods  or  stock  constituted  part  of  the  loan,  but  their  value. 
In  the  present  case,  however,  I  see  no  necessity  for  determining 
this  point,  since  the  receivers  have  taken  the  proof  on  their  part, 
and  it  is  by  that  proof  the  case  must  be  settled.  There  are  four 
witnesses  only  examined,  and  of  these  only  three  speak  of  the 
value  of  the  stock  at  or  about  the  time  of  the  loan,  and  of  theso 


JULY  TERM,  1841.  457 

Grosvenor  v.  Flax  nnd  Hemp  Manufacturing  Co.  et  al. 

two  of  them  say  they  considered  the  stock  at  that  time  worth 
par,  and  one  of  them  places  its  value  only  at  twenty  or  twenty- 
live  dollars  a  share.  Mr.  Houghton,  the  first  witness  examined, 
says,  he  was  a  director  of  the  company  from  1835  to  1838.  At 
the  time  he  left  he  thinks  the  company  was  well  off  as  to  pro- 
perty, but  short  as  to  money.  This  witness  in  March,  1838, 
transferred  these  one  hundred  and  twenty-seven  shares  to  Mr. 
Thornc  for  three  thousand  five  hundred  dollars,  not  however  as 
an  absolute  sale,  but  reserving  to  himself  the  right  of  redeeming 
them  by  paying  that  amount,  with  interest,  at  any  time  within 
a  year.  Thorne  had  also  the  right  to  sell  the  stock  upon  giving 
the  witness  fifteen  day's  notice,  for  any  sum  not  less  than  the 
three  thousand  five  hundred  dollars,  with  interest.  Thorne 
wrote  to  witness  on  the  5th  of  July,  1838,  that  ho  was  offered 
three  thousand  five  hundred  dollars,  with  interest  from  the  28th 
March,  for  the  stock.  The  witness  says,  he  wrote  Mr.  Thorne 
that  the  stock  was  worth  more  than  he  was  offered,  he  thinks  he 
wrote  him  it  was  worth  par,  for  such  was  then  his  opinion.  This 
witness,  then  clearly  declared  his  belief  that  the  stock  was  worth 
par  at  that  time.  The  fact  that  he  transferred  in  March  prece- 
ding, these  same  shares  to  Mr.  Thorne  for  three  thousand  five 
hundred  dollars,  does  not  militate  against  this  view  when  the 
nature  of  the  ageeement  is  looked  into.  It  was  not  an  absolute 
sale,  but  a  bargain  made  between  them,  as  he  says,  without 
much  reference  to  the  value  of  the  stock,  by  which  he  could 
possess  himself  of  the  notes  of  one  Rich,  and  offset  them  to  his 
own  advantage,  in  a  sum  exceeding  five  thousand  dollars.  It  is 
quite  manifest  that  three  thousand  five  hundred  dollars  was  not 
fixed  upon  at  the  time  as  the  settled  value  of  the  stock.  The 
witness  at  that  time  insisted  it  was  worth  a  great  deal  more,  and 
declares  ho  would  not  have  taken  that  sum  for  it  had  ho  been 
able  to  hold  it.  Mr.  Dean,  another  witness,  who  was  a  stock- 
holder in  the  company,  and  who  sold  his  stock  in  1839  for  twen- 
ty-live dollars  a  share,  says  ho  would  not  have  Bold  this  same 
stock  in  the  summer  and  fall  of  1833  for  less  than  par.  This 
loan  was  made  in  October,  1838,  the  very  time  here  spoken  of. 
59 


458  CASES  IN  CHANCEEY, 

Grosvenor  v.  Flax  and  Hemp  Manufacturing  Co.  et  nl. 

Mr.  Groosenbeck,  on  the  contrary,  gives  it  as  his  opinion  that- in 
the  fall  of  1838  this  stock  was  not  worth  more  than  from  twenty 
to  twenty-five  dollars  a  share,  but  he  has  no  knowledge  of  any 
being  sold  or  offered  at  that  price.  Here,  then,  are  two  witnesses 
declaring  the  stock,  in  the  summer  and  fall  of  1838,  worth  par, 
and  one  witness,  that  it  was  worth  only  twenty  or  twenty-live 
dollars.  These  witnesses,  too,  it  must  be  remembered,  were 
stockholders,  and  one  a  director  of  the  company.  They  had 
the  opportunity  of  knowing,  and  the  motive  to  inquire  into  the 
value  of  the  stock.  The  statement  made  by  the  officers  of  the 
company,  showed  this  result,  and  that  its  condition  was  impro- 
ving. Under  these  circumstances,  can  I  say  from  the  evidence 
that  the  stock  was  not  worth  in  the  market  its  par  value  ?  The 
weight  of  evidence  is  clearly  on  that  side.  But  this  stock  was 
not  taken  by  the  company  at  its  par  value.  The  par  value  was 
fifty  dollars  a  share,  and  the  company  took  it  at  only  thirty-nine 
dollars  and  forty  cents  a  share.  . 

The  worst  feature  is  that  of  selling  the  company  its  own 
stock,  and  yet  it  is  evident  this  stock  had  been  received  in  the 
course  of  business  a  short  time  before  by  Thorne,  and  he  might 
very  well  desire,  even  at  a  fair  price,  to  get  rid  of  it,  and  if  the 
price  fixed  upon  was  fair,  he  had  a  right  so  get  clear  of  it  in  the 
way  he  did.  These  witnesses,  it  must  be  remembered,  are  called 
to  destroy  the  validity  of  these  bonds  and  mortgages  by  the  re- 
ceivers, they  are  not  the  witnesses  of  Thorne  and  Whitlock,  and 
yet  they  are  very  far  f  »om  showing  that  this  stock  was  put  off  at 
c.ny  undue  price.  The  feelings  and  interest  of  the  witnesses 
arc  all  against  Thorne  and  "VVhitlock. 

My  opinion,  therefore,  is,  that  the  evidence  not  only  fails  to 
make  out  a  case  of  usury  in  these  bonds  and  mortgages,  but 
liiat  the  reverse  is  shown.  They  must,  therefore,  be  held  as  valid 
and  subsisting  liens  on  the  property.  This  view  will  dispense 
with  the  necessity  of  examining  several  questions  raised  on  the 
argument  by  the  defendants,  Thome  and  Whitlock,  both  sis  to 
the  manner  in  which  the  defence  is  raised,  the  competency  of  the 
witnesses,  and  the  diameter  of  the  evidence  ;  for,  allowing  the 


JULY  TERM,  1841.  4:9 

Grosvenor  T.  Flax  and  Hemp  Manufacturing  Co.  et  al. 

receivers  to  be  right  in  these  respects,  they  have  failed  on  the 
merits  of  the  case.  Notwithstanding  this  result,  1  think  it  proper 
to  say  here,  that  the  receivers,  under  the  circumstances,  were  in 
my  opinion  in  the  right  discharge  of  their  duty  to  raise  this  ques- 
tion for  the  consideration  of  the  court. 

There  must  be  the  usual  reference  to  a  master  to  ascertain  the 
amount  due  on  the  bonds  and  mortgages,  and  their  priority. 

Order  accordingly. 

CITED  in  Campion  v.  Kille,  1  Me  Car.  233;    Washington  Lift  Int.    Co. 
v.  Pat.  Silk  Mfg.  Co.  10  G.  E.  Or.  163. 


FANNY  GRAECEN  v.  WALTER  GRAECEN. 

It  is  not  necessary  that  actual  violence  be  shown,  to  entitle  the  party  to  a 
divorce  011  the  ground  of  extreme  cruelty 

Isolated  cases  of  wrong  or  cruelty  of  long  standing,  on  tha  port  of  the  hus- 
band, will  not  entitle  the  wife  to  a  divorce,  especially  where  n  different 
course  of  treatment  has  since  been  pursued.  But  evidence  of  such  nets  are 
competent  and  proper,  in  connection  with  more  recent  acts,  to  show  a  series 
of  wrongs  and  injuries  on  the  part  of  the  husband. 

A  notice  served  by  the  husband  on  the  wife,  after  the  institution  of  proceedings 
against  him  for  a  divorce,  requesting  her  to  return,  can  avail  nothing  in  his 
defence. 

THE  proceeding  in  this  cause  was  instituted  by  the  complain- 
ant by  petition,  under  the  act  of  13th  December,  1824,  (Elmer's 
Digest,  141,)  for  a  divorce  from  her  husband,  Walter  Graecen, 
on  the  ground  of  extreme  cruelty,  and  also  for  alimony.  The 
defendant  answered  the  petition.  Evidence  was  taken  by  both 
parties,  and  the  cause  was  heard  upon  the  pleadings  and  proofs. 

A.  TVhiteJiead,  for  complainant 

Hartwell  and  0.  S.  Hoisted,  for  defendant 

TIIK  CHANCELLOR.  This  is  a  proceeding  under  the  act  of 
1824,  bv  petition,  fora  divorce  from  bed  and  l>oard  on  the  ground 


4GO  CASES  IK 


Graecen  v.  Graeceru 


of  extreme  cruelty.  The  parties  are  now  aged  people  ;  the  com- 
plainant beyond  sixty,  and  the  defendant  beyond  seventy  years 
of  age.  It  is  nearly  forty  years  since  the  marriage  took  place, 
and  the  evidence  exhibits  a  melancholy  picture  of  unhappiness  in 
domestic  life.  It  is  not  a  case  produced  by  intemperance,  or  idle- 
ness, or  extravagance,  or  dishonesty.  The  parties  in  their  obli- 
gations to  others  seem,  as  far  as  can  be  judged  from  the  case,  to 
have  acted  like  persons  of  excellent  understanding,  honest,  in 
their  dealings,  and  very  industrious  and  frugal  ;  but  towards 
each  other  there  was  evidently  no  bond  of  affection,  and  on  the 
part  of  the  husband  a  fierce,  uncontrolable  temper.  I  cannot  fail 
to  remark  here,  that  the  course  taken  in  the  examination  of  the 
witnesses,  has  been  calculated  rather  to  confuse  and  embarrass 
the  case,  than  to  aid  the  court  in  coming  to  a  just  conclusion  up- 
on its  merits.  The  evidence  should  have  been  confined  to  the 
specific  charges  in  the  bill,  whereas  it  has  in  reality  been  little 
short  of  a  history  of  all  the  family  quarrels  for  the  last  twenty 
years,  a  recital  at  all  times  disgusting  and  painful,  and  never  to 
be  resorted  to  but  from  the  strongest  necessity.  My  purpose  will 
be  to  examine  the  charges  in  the  bill  by  the  evidence,  and  see 
w'.iether  the  defendant  has  exposed  himself  to  the  accusation  of 
extreme  cruelty,  upon  which  alone  the  complainant  can  entitle 
herself  to  the  relief  sought. 

In  point  of  time,  the  first  and  most  serious  charge  to  'be  con- 
sidered is  that  in  relation  to  Alexander  Dawson.  The  complain- 
ant alleges  that  her  husband,  for  the  purpose  of  laying  a  foun- 
dation for  a  divorce  from  her,  negociated  a  plan  with  one  Alex- 
ander Dawson,  by  which  he,  Dawson,  after  his  wife  had  gone 
to  bed,  was  to  go  in  her  room  and  get  into  her  bed,  and  then  wit- 
nesses were  to  bo  introduced  into  the  room  suddenly  and  detect 
him  in  that  position.  If  this  charge  be  true,  a  more  base  attempt 
to  ruin  the  character  of  his  wife  could  not  be  conceived  of,  a^nd 
should  for  ever  absolve  her  from  all  further  obligations  to  him.  I 
have  been  slow  to  believe  this  story,  so  repugnant  to  all  correct 
and  manly  deportment,  but  I  confess  my  conviction,  from  the 
evidence,  that  it  has  too  much  foundation  in  truth.  Alexander 


JULY  TERM,  1841.  461 


Graeccn  v,  Graecen. 


Dawson  swears  to  it  himself,  positively,  and  names  two  persons 
whom  the  defendant  told  him  he  had  employed  as  witnesses  to 
stay  in  the  barn.  The  witness  says  he  promised  the  defendant 
three  or  four  different  times  that  he  would  go  to  his  house  for 
that  purpose,  but  never  did  go,  and  finally  refused.  lie  also 
says  he  was  to  receive  for  this  act  a  pair  of  oxen  worth  from 
eighty  to  one  hundred  dollars.  The  character  of  this  witness  for 
varacity  is  impeached  by  several  others,  and  by  others  again  ho 
is  spoken  favorably  of.  I  would  not  give  much  credence  to  this 
story  if  it  depended  on  the  testimony  of  this  witness  alone,  for  I 
could  desire  no  stronger  impeachment  of  his  character  than  the 
f  .ict  that  he  would  suffer  himself  to  be  employed  in  so  despicable 
and  dishonorable  a  transaction.  But  we  have  it  in  evidence  from 
Sophia,  one  of  the  daughters  of  these  parties,  that  her  father 
told  her,  when  speaking  of  the  stories  that  had  been  in  circula- 
tion about  him,  that  they  were  not  true  except  the  DawBon  story, 
and  then  said  that  he  blamed  himself  for  that.  The  story,  ho 
said,  was  only  true  in  part,  for  the  proposition  was  mude  by  Daw- 
son  to  him,  and  not  by  him  to  Dawson,  and  he  regretted  he  had 
listened  to  him.  I  see  very  little  difference  whether  the  defend- 
ant made  the  proposition  to  Dawson,  or  suffered  Dawson  to  make 
such  an  one  to  him,  and  listened  to  it.  He  further  added,  that 
he  finally  told  Dawson  he  would  not  accede  to  his  proposition. 
To  another  daughter,  Jane,  he  repeated  substantially  the  same 
thing,  and  on  another  occasion.  From  the  evidence  of  Julius  A. 
Graeccn,  a  son  and  a  witness  in  behalf  of  the  defendant,  (al- 
though drawn  from  him  with  manifest  reluctance,)  it  is  evident 
the  defendant  gave  him  five  dollars  to  be  used  to  prevent  Daw- 
son  from  being  a  witness  in  this  cause ;  and  Dawson  himself 
says,  that  he  was  persuaded  not  to  attend  as  a  witness,  and  that 
one  Daniel  Me  Vicker  took  him  to  a  stone  and  lifting  it  up,  said, 
"There  is  some  money  for  you,  but  I  don't  give  it  to  you.  This 
is  to  keep  you  from  going  to  Morristown."  The  two  persons 
whom  the  defendant  named  to  Dawson  as  the  persons  he  had 
employe  1  to  stay  in  the  barn  to  keep  watch  for  him,  both  declare 
they  were  never  so  employed,  and  yet  a  witness  by  the  name  of 


402  CASES  IJST  CHANCERY, 

Graecen  v.  (Iraecen. 

Stephen  Sanders  swears,  that  he  and  another  person  were  em- 
ployed, at  about  the  time  Dawson  speaks  of,  by  the  defendant, 
to  stay  in  his  barn,  under  pretence  that  there  was  something  go- 
ing on  wrong  in  the  house — taking  away  his  things  by  his  wife's 
father  was  mentioned — and  that  he  did  stay  there  until  past  mid- 
night. From  all  this,  if  any  credit  is  to  be  given  to  witnesses, 
there  is  too  much  foundation  for  the  belief  that  the  story  Dawson 
tells  is  true  in  all  its  material  parts. 

Another  ground  of  complaint  made  in  the  bill,  is  actual  vio- 
lence and  threats  of  violence  towards  the  complainant.  I  am 
happy  in  finding  the  evidence  of  positive  violence  insufficient,  but 
that  threats  have  on  several  occasions  been  made,  and  that  too 
under  circumstances  calculated  to  alarm  the  complainant,  (espe- 
cially when  made  by  a  man  of  violent  passions,)  there  can  be 
no  doubt.  Margaret  Alward  testifies,  that  on  one  occasion,  when 
they  were  ftt  dinner,  the  defendant  came  in  and  said  to  his  wife 
in  a  passion,  bringing  his  hand  down  on  the  table,  "  I  swear  by 
God  I  will  put  the  knife  through  your  head,  if  they  hang  me 
for  it."  She  further  says,  she  has  heard  him  more  than  once 
threaten  to  put  her  or  kick  her  out  of  doors.  The  daughter  So- 
phia coniirms  the  account  at  the  dinner  table  so  far  as  to  recol- 
lect his  bringing  his  hand  down  on  the  table,  and  his  being  in  a 
great  passion,  and  hearing  the  words  "  if  they  hang  me  for  it," 
but  being  disturbed  by  the  scene  she  left  the  table.  Sophia  also 
says,  that  on  another  occasion,  he  took  the  axe  from  the  wood- 
pile in  great  anger,  and  went  up  to  her  mother's  room  with  it  in 
his  hand,  and  the  witness  took  hold  of  him  and  endeavored  to 
restrain  him.  She  saw  him  take  her  mother's  cloak  and  stamp 
on  it,  and  burn  one  of  her  dresses.  At  another  time,  the  daugh- 
ter Jane  testifies,  that  she  saw  her  father  in  a  great  rage  take  the 
axe  and  chase  her  mother  round  the  house  to  a  cellar  door,  and 
there  raised  the  axe  and  threaten  to  split  her  down.  The  daugh- 
ters spoke  to  him  on  the  subject  of  his  treatment  to  their  mother, 
and  complained  to  him  that  she  had  no  peace ;  his  answer  was. 
that  she  did  not  deserve  peace,  and  never  should  have  peace. 
They  represent  him  as  ferocious  and  ungovernable  at  times,  and 


JULY  TEHM,  1841.  4G3 


Graecen  v.  Graecen. 


are  evidently  impressed  that  their  mother  was  treated  bad  by 
their  father.  They  say  that  during  the  last  year  theif  mother 
lived  at  home,  they  did  not  feel  it  safe  to  leave  her  there  alone 
with  him,  as  his  conduct  manifested  so  much  hatred  and  dislike 
to  her. 

Another  charge,  which  seems  fully  sustained  against  the  de- 
fendant, is  the  manner  in  which  he  spoke  of  the  complainant  to 
his  hands  and  to  her,  by  calling  her  his  devil,  faggot  of  hell, 
a  Baskenridge  hypocrite,  &c.  Several  witnesses  confirm  this 
statement.  It  seems  the  complainant  was  in  the  habit  of  attend-, 
ing  church  at  Baskenridge,  and  was  a  member  of  the  church 
there.  lie  evidently  intended  to  reproach  her  for  her  religious 
sentiments,  and  would  at  times  refuse  her  a  horse  to  go  to  church. 
When  the  neighbors  took  her  with  them,  some  of  the  witnesses 
say  he  reproached  them  for  it.  In  sickness,  also,  he  seems  to 
have  neglected  his  wife  shamefully,  never  going  in  to  see  her, 
and  sometimes  refusing  and  objecting  to  having  a  physician 
sent  for. 

There  are  other  instances  stated  in  tho  bill,  and  in  the  evi- 
dence, of  unjustifiable  conduct  on  the  part  of  the  defendant, 
which  it  is  unnecessary  to  examine,  as  I  deem  what  has  already 
been  said  a  sufficient  outline  of  this  disgusting  history  to  exhibit 
the  case  made  by  the  complainant ;  a  case  which  upon  its  face 
claims  for  her  the  protection  of  ths  court,  unless  the  defendant 
can  in  some  way  defend  himself  against  so  serious  accusations. 
Without  going  minutely  into  his  evidence,  it  will  be  proper  to 
consider  some  of  the  grounds  of  defence  assumed  by  him. 

And  first,  he  alleges  that  the  conduct  of  the  complainant  her- 
self was  calculated  to  excite  his  passions,  and  that  she  and  the 
daughters  have  conspired  against  him.  I  am  very  far  from  con- 
sidering the  complainant  blameless.  She  appears  to  be  a  woman 
of  spirit  and  temper,  but  I  can  trace  in  her  conduct  nothing  to 
justify  the  treatment  she  received.  It  is  hardly  to  be  supposed 
that  a  woman  can  receive  every  indignity  at  the  hands  of  her 
husband,  and  never  show  resentment.  It  is  human  nature,  and 
even  if  at  times  her  conduct  might  afford  some  extenuation  of 


464  CASES  IN  CHANCERY, 

Graecen  v.  Graccen. 

her  husband's  conduct,  it  can  never  justify  it.  The  defendant 
is  a  farmer  of  respectable  property,  and  the  complainant,  as  is 
clearly  proved,  was  a  hard-working  woman,  and  contributed  her 
share  in  accumulating  the  property  and  bringing  up  the  family. 
It  was  her  habit  to  sell  things  from  the  farm,  such  as  butter,  and 
even  grain  at  times,  and  supply  the  family  with  groceries  and 
other  necessaries  not  furnished  from  the  farm.  I  have  formed 
the  opinion  from  the  evidence,  that  the  female  branch  of  this 
family,  both  the  mother  and  daughters,  had  a  higher  ambition 
than  the  defendant,  and  desired  to  place  themselves  in  the  world 
on  the  best  footing  in  their  power.  For  this  I  would  rather  com- 
mend them,  and  especially  as  it  was  done  by  their  individual 
exertions,  rather  than  by  any  undue  calls  upon  the  defendant. 
All  that  part  of  the  evidence,  therefore,  relating  to  things  taken 
from  the  place  and  exchanged  at  the  stove  by  the  complainant, 
would  seem  to  fall  naturally  and  properly  under  this  arrangement 
of  the  family. 

It  is  attempted  to  fasten  a  charge  upon  the  complainant  of 
having  posted  up  a  notice  of  an  infamous  character,  at  a  Mrs. 
Heath's,  impeaching  her  virtue  ;  and  from  the  evidence  of  Juliua 
A.  Graecen  I  was  impressed  that  it  must  be  so.  He  says  he  saw 
the  writing  in  his  mother's  possession,  which  she  read  to  him, 
and  said  it  would  be  a  fine  thing  to  destroy  her  character.  He 
says  further,  that  she  dressed  up  a  girl  by  the  name  of  Ruth 
Cummings  in  his  clothes,  and  gives  it  as  his  impression  that  she 
sent  the  girl  to  paste  it  up  at  Mrs.  Heath's  gate.  This  seems 
very  plain  evidence,  and  yet  the  story  on  the  face  of  it  is  un- 
natural for  a  sensible  woman,  as  the  complainant  is  reputed  to 
be,  for  her  detection  would  be  certain.  Jane,  the  sister  of  this 
witness,  however,  on  her  examination,  says,  that  two  persons, 
esquire  Dayton  and  esquire  Rickey,  were  called  in  at  one  time  to 
settle  some  difficulties  between  the  complainant  and  the  defend- 
ant, when  the  defendant  charged  his  wife  with  putting  up  this 
notice,  and  Julius  was  asked  if  ho  had  ever  seen  the  notice  be- 
fore, and  lie  said  he  had  not  and  knew  nothing  about  it.  If 
!  true,  the  fact  of  the  complainant's  having  placed  up  a  paper  of 


JULY  TERM,  1841.  4C5 


Graccen  v.  Graecen. 


tliis  kind  at  the  door  of  a  neighbor  of  unimpeachable  character, 
would  certainly  detract  much  from  her  own  standing ;  but  while 
I  have  no  doubt,  from  the  evidence  of  Mr.  Heath  and  others, 
that  sucn  notice  was  put  up,  I  am  by  no  means  satisfied  that  it 
was  put  up  by  this  complainant.  There  is  no  proof  but  that 
of  Julius  to  fix  it  upon  her,  and  it  seems  that  on  another  occasion 
he  denied  all  knowledge  about  it. 

Several  of  the  hands  who  worked  on  the  place  have  been  ex- 
amined, and  they  state,  according  to  their  own  impressions, 
which  of  these  parties  was  most  to  blame.  In  general  they  do 
not  complain  that  Mrs.  Graccen  did  not  make  proper  provision 
for  them,  but  they  speak  unfavorably  of  her  general  disposition 
and  temper.  Her  conduct  when  she  left  her  husband's  house,  in 
taking  away  household  furniture,  was  certainly  in  the  highest 
degree  improper,  and  the  goods  might  at  any  time  have  been 
reclaimed  by  the  defendant.  It  was  not  a  sufficient  excuse  for 
so  doing,  that  die  had  labored  with  her  own  hands  to  procure 
most  that  she  took,  and  that  her  desolate  situation  required  it 
This  may  afford  some  apology,  but  it  would  have  been  far  better 
had  she  gone  away  empty-handed,  and  resorted  to  the  laws  of 
the  country  for  her  rights. 

The  charge  of  combination  on  the  part  of  the  daughters  against 
their  father,  and  in  favor  of  their  mother,  is  not  sustained.  I  see 
no  sayings  or  doings  on  their  part  toward  their  father,  that  can 
expose  them  to  this  censure.  If  they  believed  their  mother  bad- 
ly treated,  they  had  a  right  to  espouse  her  cause  and  vindicate 
her  from  reproach.  They  should  do  so,  undoubtedly,  in  a  pro-1 
per  form  and  manner,  and  for  aught  that  appears  it  was  so 
done. 

It  is  further  objected,  that  many  of  the  transactions  referred 
to  are  too  far  back,  and  should  not  now  be  brought  forward  to 
prejudice  this  cause.  There  is  some  weight  in  this  objection, 
and  if  it  were  an  isolated  occurrence  long  since  passed  by,  on 
which  alone  the  cause  rested,  I  should  think  it  ought  to  prevail, 
and  especially  so  if  a  different  course  of  treatment  had  of  late 
years  been  pursued.  But  the  evidence  is,  that  the  bitterness  anu 
60 


4GG 


Graecen  v.  Graecen. 


ill  feeling  of  the  defendant  towards  his  wife  has  not  only  contin- 
ued, but  been  on  the  increase  up  to  the  time  of  her  leaving  her 
home.  It  is  the  connexion  which  exists  between  the  acts  of  op- 
pression on  the  part  of  this  husband  in  former  days  and  now, 
showing  a  series  of  injustice  and  wrong  on  his  part,  and  of  long 
endurance  and  forbearance  on  the  part  of  the  wife,  that  gives 
force  and  propriety  to  this  evidence. 

It  is  objected,  that  as  no  actual  violence  is  shown  to  the  person 
of  the  complainant,  the  case  is  not  within  the  meaning  of  the 
statute  which  authorizes  a  divorce  for  extreme  cruelty.  What 
are  the  limits  to  which  the  court  are  confined  under  this  act,  it 
may  not  be  easy  to  define,  and  it  is  not  necessary  so  to  do  in  the 
present  case.  I  deem  the  conduct  of  the  defendant  as  clearly 
and  plainly  within  the  act.  In  4  John.  Chan.'  189,  chancellor 
Kent  says,  "  That  mere  petulance  and  rudeness,  and  sallies  of 
passion,  might  not  be  sufficient,  but  a  series  of  acts  of  personal 
violence,  or  danger  of  life,  limb  or  health  are."  If  the  conduct 
of  this  defendant  in  the  Dawson  affair,  in  raising  the  axe  and 
threatening  to  cut  down  his  wife,  and  continual  use  of  insulting 
language  toward  her,  are  not  within  the  meaning  of  the  act, 
it  would  be  difficult  to  find  a  case  that  is.  It  is  a  case  every  way 
much  stronger  than  that  in  /Saxton,  474,  in  which  a  divorce  was 
ordered. 

As  to  the  notice  which  the  defendant  served  on  his  wife  after 
this  suit  was  instituted,  requesting  her  to  come  back,  it  can  avail 
him  nothing.  If  she  lived  there  in  the  unhappy  state  related  by 
the  witnesses,  she  was  noi-  bound  to  return,  and  I  feel  well  satis- 
fied the  notice  was  only  served  to  produce  an  effect  on  this  cause. 
The  defendant  did  not  wish  his  wife  to  return ;  indeed,  he  told 
his  daughter-in-law  that  if  she  did  come  back,  he  would  choose 
what  corner  of  the  house  to  put  her  in. 

My  view  of  this  whole  case  is,  that  I  am  called  upon  by  every 
principle  of  justice  to  separate  these  parties.  How  is  this  family 
now  situated  ?  The  father  remains  the  sole  tenant  of  his  home. 
The  children,  four  in  number,  three  of  them  females  unmarried, 
;and  the  wife,have  left  it,and  as  they  8ay,on  account  of  the  conduct 


JULY  TERM,  1841.  407 


Graecen  v.  Graecen. 


of  this  defendant.  The  girls  say  liis  treatment  of  their  mother 
rendered  their  life  unhappy,  and  the  son,  who  went  there  to  livo 
with  his  wife  after  his  mother  left,  has  also  gone,  and  the  very 
night  before  he  left  had,  as  he  says,  a  scuffle  with  his  father,  ia 
which  his  father  threatened  to  stab  him. 

One  of  the  counsel  of  the  defendant,  indeed,  stated  on  t'.ic 
argument,  that  he  did  not  so  much  object' to  the  separation,  bat 
protested  against  any  decree  for  alimony.  This  would  be  cruel, 
indeed,  to  turn  off  this  old  woman,  after  toiling  for  nearly  forty 
years  on  the  farm,  without  a  cent.  She  is  now  old  and  unable  to 
procure  a  support  without  the  assistance  of  her  daughters,  who 
have  their  own  living  to  make.  She  is  entitled  to  reasonable  ali- 
mony. I  shall,  therefore,  decree  a  divorce  a  mensa  ct  thoro,  for 
life,  between  these  parties,  and  refer  the  question  of  alimony  to  a 
master  in  the  usual  form. 

CITED  in  Cook  v.  Cook,  3  Stock.  193;  Close  v.  Close,    9  0.  E.  ffr.  346; 
Clo*  v.  Cltse,  10  C.  E.  Gr.  527;—  528. 


JOHN  G.  COSTEE  v.  The  MONROE  MANUFACTUELNG 
COMPANY. 

Where  land  is  conveyed  with  covenant  of  warranty,  and  the  purchasers  are 
evicted  from  part  of  the  premises,  or  a  judgment  in  ejectment  is  recovered 
ngainst  them;  on  a  bill  by  the  vendor  for  a  foreclosure  of  a  mortgage  giv*- u 
f  jraportof  the  purchase  money,  equity  will  permit  the  purchasers,  or  those 
claiming  under  them,  to  avail  themselves  of  the  failure  of  title  as  a  defence 
ngainst  recovery  upon  the  mortgage;  and  will  either  stay  the  proceeding* 
upon  the  mortgage  until  the  damages  arising  from  the  failure  of  title  are 
ascertained  by  a  suit  ot  law,  or  will  direct  an  issue,  or  a  reference  to  a  mau- 
ler, to  Ascertain  the  damages,  before  decreeing  a  recovery  upon  the  mort- 
gage. As  a  general  rule,  it  will  be  referral  te  a  master  to  ascertain  the 
damages,  unless  the  complainant  requires  a  trial  at  law. 

Bat  if  the  bill  for  foreclosure  be  filed  by  an  assignee  of  the  mortgage  withovt 
notice,  will  equity,  under  such  circumstances  interfere?— Quere, 

A  court  of  equity  will,  to  effectuate  justice,  settle  unliquidated  damage*. 

A  covenant  of  warranty  by  one  of  several  grantors,  made  at  tho  same  ti OK 
with  the  original  deed,  and  endorsed  upon  it,  will  receive  the  same  con- 
struction as  if  made  in  the  body  of  the  deed. 


4C8  CASES  IN  CHANCERY, 

Coster  v.  Monroe  Manufacturing  Co. 

An  actual  eviction  is  not  necessary  to  entitle  the  defendant  to  his  damages  on 
the  covenant,  provided  there  has  been  a  trial  and  judgment  in  ejectment, 
though,  the  court  will  not  act  on  tho  mere  allegation  that  tho  title  is  de- 
fective. 

Where  one  of  several  grantors,  holding  one  hundred  and  forty-nine  shaers 
out  of  sis  hundred  and  eighty-two,  in  which  the  premises  are  held,  cove- 
nants that  ho  is  the  owner  of  the  said  one  hundred  and  forty-nine  shares, 
and  that  the  Bame  aro  free  of  incumbrances,  and  that  the  grantor  will  war- 
rant and  defend  the  title  to  the  bargained  premises  to  the  ex'ent  of  said 
shares  and  no  further,  and  the  title  to  the  premises  partially  fails,  the  ven- 
dor is  liable  on  his  covenant  only  in  proportion  to  the  nuraberof  shares  held 
by  him. 

lu  the  construction  of  covenants,  it  is  a  settled  rule  both  at  law  and  in  equity, 
to  look  to  the  evident  meaning  of  tho  parlies. 

THE  bill  in  this  cause  was  filed  for  the  foreclosure  of  a  mort- 
gage given  bj  Francis  Mann  and  wife  and  John  ~W.  Berry  and 
wife  to  the  complainant,  bearing  date  on  the  first  day  of  Febru- 
ary, eighteen  hundred  and  thirty-one,  to  secure  the  payment  of 
twenty  thousand  dollars. 

The  answer  of  the  defendants,  "  The  Monroe  Manufacturing 

'  O 

company,"  admits  the  bond  and  mortgage  as  stated  in  the  com- 
plainant's bill ;  but  states,  that  the  mortgaged  premises  were  sold 
and  convoyed  by  the  complainant  and  others  to  Francis  Mann 
and  John  W.  Berry,  by  deed  bearing  even  date  with  the  complain- 
ant's mortgage  for  the  consideration  of  twenty-five  thousand  dol- 
lars, and  that  the  bond  and  mortgage  mentioned  in  the  com- 
plainant's bill  were  given  to  secure  part  of  the  purchase  money 
of  said  premises  :  that  the  premises,  prior  to  the  execution  of  the 
deed,  were  declared  by  tho  three  owners  thereof  to  be  divided 
into  six  hundred  and  eighty-two  shares,  and  that  at  the  time  of 
the  said  sale  complainant  held  one  hundred  and  forty-nine  shares 
thereof,  and  was  entitled  to  a  like  proportion  of  the  consideration 
money  given  for  the  purchase  of  said  premises,  which  proportion 
amounted  to  about  five  thousand  four  hundred  and  sixty  dollars : 
that  on  the  same  day,  and  at  tho  time  of  the  execution  of  the 
deed  to  Mann  and  Berry,  and  before  the  delivery  of  tho  deed  or 
of  the  bond  and  mortgage,  the  complainant  duly  executed,  under 
his  hand  and  seal,  a  special  covenant  of  warranty  of  the  title  to 


JULY  TERM,  1841.  403 

Cost,  r  Y.  Monroe  Manufacturing  Co. 

said  premises,  endorsed  on  the  deed  in  the  following  words : — 
"  Know  all  men  by  these  presents,  that  I,  John  G.  Coster,  one 
"  of  the  grantors  within  named,  do  hereby,  for  myself,  my  heirs, 
"  executors,  administrators  and  assigns,  in  respect  of  my  propor- 
"  tion,  being  one  hundred  and  forty-nine  shares  out  of  the  six 
"  hundred  and  eighty-two  shares  within  mentioned,  and  of  the 
"  like  proportion  of  the  consideration  monies  within  mentioned, 
"but  not  in  respect  of  the  residue  of  shares  or  of  the  said 
"consideration  money,  covenant  and  agree  with  the  within 
"named  Francis  Maim  and  John  "VV.  Berry,  their  heirs  and  te- 
"  signs,  that  I  am  the  owner  of  the  said  one  hundred  and  f  orty- 
"  nine  shares,  and  have  good  right  to  sell  the  same  in  the  manner 
"  within  mentioned,  and  that  the  same  are  free  of  all  inculn- 
"  brances  and  that  I  will  warrant  and  defend  the  title  to  the 
"within  premises  to  the  extent  of  said  shares  and  no  further,  to 
"  said  Francis  Mann  and  John  W.  Berry,  their  heirs  and  as- 
"  signs."  Insists,  that  the  covenant  was  a  part  of  the  transac- 
tion of  sale  and  purchase,  that  it  was  intended  to  be  and  should 
be  considered  as  a  part  of  the  said  deed  of  conveyance.  States, 
that  by  deed,  dated  June  23d,  1834,  John  ~W.  Berry  and  wife 
conveyed  to  James  K.  Mathews  the  undivided  half  part  of  the 
premises,  machinery,  &c.,  as  described  in  complainant's  bill,  and 
that  by  deed  dated  September  20th,  1834,  Francis  Maun  and 
wife  conveyed  to  the  said  James  N.  Mathews  his  undivided  half 
part  of  the  said  premises  and  machinery,  &c.  subject  to  the  com 
plaiuant's  mortgage :  that  the  said  deed  from  Mann  to  Mathews 
contained  covenants  of  quiet  possession,  against  incumbrances  of 
every  description  excepting  complainant's  mortgage,  and  of 
general  warranty :  that  by  means  of  said  conveyances,  Matthews 
became  possessed  of  the  entire  premises,  with  the  machinery 
thereon,  and  that  he  also  received  the  title  deed  and  covenant 
executed  by  complainant.  States,  that  by  deed,  dated  August 
22d,  1835,  Mathews,  for  the  consideration  of  thirty  thousand 
dollars,  conveyed  the  premises,  with  the  improvements,  to  Samuel 
G.  Wheeler,  subject  to  complainant's  mortgage,  which  was  ac- 
counted as  part  of  the  consideration  money,  and  that  Mathewe 


470  CASES  IN  CHANCERY, 

Coster  T.  Mouroe  Manufacturing  Co. 

passed  to  Wheelerthe  title  deeds  and  the  aforesaid  covenant ;  and 
that  the  deed  from  Mathews  to  Wheeler  contained  full  covenants 
of  warranty  of  title.  That  when  Wheeler  purchased  the  prem- 
ises, the  mills  and  buildings  were  out  of  repair ;  that  he  expend- 
ed large  sums  of  money  in  repairing  and  painting  the  same,  and 
in  purchasing  and  erecting  machinery :  that  he  erected  another 
building  upon  the  premises,  which  he  also  stocked  with  machine- 
ry, and  that  by  menos  of  his  improvements  the  property  was 
greatly  enhanced  in  value.  That  the  "  Monroe  Manufacturing 
company"  is  an  incorporation  created  by  the  legislature  of  New- 
Jersey,  forinanufacturing  cotton  and  other  articles :  that  their 
location  and  seat  of  business  is  in  Paterson ;  that  for  the  purpose 
of  carrying  on  their  business  with  greater  advantage,  they  pur- 
chased from  Samuel  G.  Wheeler  the  property  covered  by  com- 
plainant's mortgage :  that  Wheeler  and  wife,  by  deed  containing 
full  covenants,  dated  24th  March,  1838,  for  the  consideration  of 
sixty  thousand  dollars,  conveyed  to  said  company  the  same  prem- 
ises set  forth  and  described  in  complainant's  mortgage  and  bill,  to 
gether  with  the  mills  and  improvements  thereon :  that  the  prem- 
ises, at  the  time  of  the  last  mentioned  purchase,  were  understood 
to  be  subject  to  complainant's  mortgage,  and  that  the  company 
were  to  pay  off  and  satisfy  the  same :  that  the  deed  from  Whco- 
ler  to  the  company  contained  covenants  of  seizin  and  warranty 
against  incumbrances,  and  that  all  the  title  papers  and  the  cove- 
nant of  complainant  were  handed  over  to  the  company.  That 
the  title  of  complainant  and  the  other  original  grantors,  was  not 
good  for  all  the  premises  conveyed  by  them  to  Berry  and  Mann 
and  embraced  in  complainant's  mortgage ;  but  that  their  titlo  to 
a  part  thereof,  upon  which  Wheeler  had  erected  a  building  and 
made  valuable  improvements,  (a  particular  description  whereof  ia 
contained  in  the  answer,)  was  wholly  defective :  that  while  tho 
premises  were  possessed  by  Mathews,  an  action  of  trespass  and 
ejectment  was  instituted  against  him  in  tho  supremo  court  of 
New-Jersey,  on  the  demise  of  "  the  Society  for  establishing  use- 
ful Manufactures,"  for  that  part  of  the  mortgaged  premises  de- 
scribed in  the  answer:  that  although  tho  suit  was  pending 


JULY  TERM,  1841.  471 

• 

Coster  v.  Monroe  Manufacturing  Co. 

against  Mathews  at  the  time  of  the  purchase  by  the  company 
from  Wheeler,  they  were  induced  by  the  inquiries  he  had  made 
respecting  the  title,  and  the  opinions  obtained  from  his  counsel, 
to  believe  that  his  title,  derived  originally  from  complainant  and 
others,  was  perfect  and  valid  for  the  whole  premises,  and  that 
they  purchased  under  such  belief.  States,  that  after  Wheeler 
purchased  the  premises  and  entered  into  possession,  and  during 
the  pendency  of  the  said  action  of  ejectment,  he  had  several  in- 
terviews upon  the  subject  with  complainant  and  his  counsel ;  that 
he  gave  complainant  notice  of  the  suit,  and  required  him  to  de- 
fend the  same  ;  that  complainant  never  denied  his  liability  upon 
his  covenant,  but  always  promised  Wheeler  to  have  the  matter 
arranged  :  that  complainant's  son  and  counsel  visited  Paterson. 
and  had  one  or  more  interviews  with  the  governor  of  said  society 
upon  the  subject :  that  upon  complainant's  request  the  trial  of  tho 
cause  was  once  or  of  tener  postponed,  on  account  of  the  absence 
of  one  of  the  grantors  from  the  country,  upon  complainant's  iiJ- 
legation  that  on  his  return  home  the  matter  should  be  settled  to 
Wheeler's  satisfaction.  That  once,  when  the  cause  was  noticed 
for  trial,  a  written  notice  informing  him  of  the  time  and  place 
was  previously  left  at  complainant's  dwelling  house  in  Kew-York, ' 
requesting  him  to  defend  the  title  to  the  property  against  the 
claim  of  the  said  society :  that  complainant  failed  to  attend  to  the 
cause,  and  that  tlie  plaintiff  obtained  judgment  in  liis  said  action ' 
for  the  recovery  of  said  premises  ;  that  subsequently  a  writ  of 
possession  was  issued,  directing  the  sheriff  to  give  the  plaintiff 
possession  of  the  ground  and  premises  recovered  by  him :  that 
tho  company,  having  previously  purchased  the  whole  premises, 
including  the  part  for  which  judgment  was  recovered  by  the  said 
society,  and  being  informed  that  the  sheriff  was  about  to  dispos- 
sess them  of  that  part  thereof,  negotiated  with  tho  society  and 
purchased  for  five  thousand  dollars  the  said  piece  of  land  and 
premises ;  which  sum  was  the  consideration  for  the  value  of  the 
rights  of  said  society  in  the  laud,  not  embracing  the  improve- 
ments made  thereon  by  the  company  and  Wheeler ;  and  that  a 
conveyance  was  executed  therefor  on  the  13th  of  August,  133$, 


4Y2 


Coster  v.  Monroe  Manufacturing  Co. 


and  the  money  paid.     Insists,  that  an  allowance  by  way  of  set- 
off,  with  interest,  should  be  made  from  the  mortgage  debt,  equal 
to  the  proportion  which  that  part  of  the  premises  bore  to  the  whole 
in  respect  to  the  consideration  paid  to  complainant  and  others  up- 
on the  original  purchase  from  them,  including  the  amount  se- 
cured by  the  mortgage.     Charges,  that  the  premises  which  were 
defective  in  title,  and  for  which  a  recovery  was  obtained  upon  a 
paramount  title,  constituted  a  large  portion  of  the  whole  value  of 
the  property  conveyed  by  complainant  and  others  to  Berry  and 
Mann ;  that  the  relative  value  thereof  to  the  residue  of  the  prem- 
ises, is  at  least  one  fifth  of  the  whole,  and  that  the  share  of  the 
consideration  money  which  should  be  refunded,  with  interest,  ou 
account  of  the  defect  in  the  title,  will  greatly  exceed  the  amount 
paid  to  the  society,  and  the  interest  thereon.     States,  that  Berry 
and  Mathews  have  left  this  state,  and  as  they  believe  do  not  re- 
side in  the  United  States,  and  that  Mann  is  not  a  resident  of 
New-Jersey ;  that  Wheeler  has  become  embarrassed,  and  will  be 
wholly  unable  to  respond  to  the  company  on  his  covenant  for  any 
part  of  their  damages  in  case  the  whole  mortgage  debt  should  be 
recovered.     Insists  that  in  an  action  at  law,  complainant  would 
be  liable  to  the  company,  as  assignees  of  Berry  and  Mann,  upon 
his  covenant  of  warranty  of  title,  to  the  extent  of  the  amount  of 
his  then  interest  in  the  premises,  and  the  like  proportion  of  the 
•whole  consideration  of  the  purchase  from  him  and  others  ;  but 
inasmuch  as  complainant  resides  out  of  this  state,  and  a  prosecu- 
tion upon  the  said  covenant  in  a  foreign  state  would  be  attended 
with  embarrassments,  the  company  are  willing  to  take  five  thou- 
sand dollars,  with  interest,  the  consideration  given  to  the  "Society 
for  establishing  useful  Manufactures"  for  their  conveyance ;  or  to 
have  that  much  allowed  as  a  credit  on  the  mortgage  debt  in  dis- 
charge of  the  said  covenant  of  complainant ;  but  they  insist  that 
in  equity  an  allowance  by  way  of  set-off  or  deduction  ought  to 
be  made  from  the  mortgage  debt  of  the  amount  of  five  thou- 
sand dollars,  paid  to  the  society,  with  interest,  or  a  deduction  of 
a  rateable  proportion  of  said  amount. 


JULY  TERM,  1841.  473 

Coster  v.  Monroe  Manufacturing  Co. 

The  cause  came  on  for  hearing  upon  the  bill,  answer,  and 
replication. 

E.   Vajiarsdale,  for  complainant. 
E.  B.  D.  Oyden,  for  defendant. 

Cases  cited  by  the  complainant's  counsel.  2  John.  Chan.  /«>. 
523  ;  2  Brown's  Parl.  Cas.  134,  136 ;  4  Kent's  Com.  475 ; 
2  Harrison,  309 ;  Jeremy's  E%.  486 ;  Zevins,  46,  47 ;  Dyer, 
240;  1  Wendell,  228;  2  Johns.  Cas.  203;  2  Bos  and. Pull. 
13  ;  7  John.  It.  380 ;  2  Mass.  437 ;  3  Term  Rep.  393,  G78  ; 
1  lien.  Bl.  5G2. 


TJIE    CHAKCELLOK.     This  bill  is  filed  on  a  mortgage  made 
by  Francis  Mann  and  John  "W.  Berry  to  the  complainant,  to  se- 
cure the  payment  of  twenty  thousand  dollars.     The  validity  of 
the  mortgage  is  not  questioned,  but  the  defendant  claims  to  have 
a  deduction  from  its  amount  for  the  reasons  stated  in  the  answer. 
By   the  answer,  which  is  sustained  by  the  proofs,  it  seems 
that  the  mortgage  covers  what  was  formerly  known  as  the  Bea- 
ver woollen  factory,  but  latterly  the  Rutgers  cotton  factory  mills 
and  buildings,  and  lot  of  land  whereon  they  stand,  in  the  town 
of  Paterson.      This  mill,  being  owned  by  several  persons,  was 
divided  by  them  into  shares,  and  the  several  parties  holding  these 
shares  conveyed  the  property  to  Mann  and  Berry,  who,  as  part 
of  the  consideration,  executed  the  mortgage  to  the  complainant. 
The  property  has  been  conveyed  in  the  usual  and  regular  man- 
ner, by  Mann  and  Berry,  through  several  parties,  to  the  defend- 
ants, u  The  Monroe  Manufacturing  company,"  which  company 
now  has  the  equity  of  redemption  in  the  premises.  The  deed  to 
Mann  and  Berry  bears  date  the  first  day  of  February,  1831,  (tho 
same  day  with  the  complainant's  bond  and  mortgage,)  and  is 
made  by  the  executors  of  Henry  Rutgers,  tho  executors  of  Wil- 
liam Few,  Ichabod  Prall  and  wife,  Jeroinus  Johnson,  and  the 
Cl 


474:  CASES  IN  CHANCERY, 

Coster  v.  Monroe  Manufacturing  Co. 

complainant  and  wife,  as  parties  of  the  first  part.  In  a  recital 
in  the  deed,  the  shares  are  stated  to  be  six  hundred  and  eighty- 
two,  of  which,  at  the  time  of  the  conveyance,  the  estate  of  Hen- 
ry Ilutgers  held  one  hundred  and  sixty-f  our/the  estate  of  William 
Few  one  hundred  and  thirty-five,  Ichabod  Prall  and  wife  fifty- 
six,  Jcro'mus  Johnson  one  hundred  and  seventy-eight,  and  the 
complainant  one  hundred  and  forty-nine.  The  interest  of  these 
parties  was  distinct,  and  no  way  dependant  on  each  other  any 
farther  than  all  share-holders  in  a  joint  stock  company.  Each 
had  an  interest  to  the  amount  of  his  shares,  and  no  more.  The 
deed  purports  and  was  no  doubt  made  upon  the  consideration  of 
twenty-five  thousand  dollars,  of  which  sum  the  complainant's 
mortgage  constituted  twenty  thousand  dollars,  and  the  remaining 
five  thousand  dollars  was  either  paid  in  cash  or  otherwise  secured. 
The  covenants  in  the  body  of  the  deed  are  only  againsl^the  acts 
of  the  grantors,  for  quiet  enjoyment  and  for  further  assurances ; 
but  there  is  a  separate  and  independent  covenant  on  the  back  of 
the  deed  for  a  warranty  of  title,  made  by  the  complainant  alone. 
For  a  part  of  the  lot  conveyed  in  this  deed,  the  title  of  the  gran- 
tors turns  out  to  be  defective,  and  an  action  of  ejectment  has  been 
brought,  the  cause  tried,  and  verdict  and  judgment  in  favor  of 
the  lessor  against  the  title  of  the  grantors  in  the  deed.  The  ex- 
ecution was  issued  and  about  to  be  executed  for  the  part  recover- 
ed in  the  suit,  when  the  defendants,  rather  than  be  dispossessed 
paid  the  Society  for  establishing  useful  Manufactures  (the  plain- 
tiffs in  ejectment,)  five  thousand  dollars,  and  took  their  title  for 
the  portion  of  the  premises  so  declared  to  belong  to  them.  The 
defendants  now  insist  that  they  are  entitled  to  have  an  abatement 
on  the  amount  due  the  complainant  on  his  mortgage,  of  the 
damages  which  they  have  sustained  by  the  recovery  of  the  Soci- 
ety for  establishing  useful  Manufactures,  by  virtue  of  the  cove- 
nant entered  into  by  the  complainant  on  the  back  of  the  deed. 

This  statement  of  the  case  will  present  two  questions  :  1st, 
"Whether  the  defendants  can  avail  themselves  of  this  defence  in 
this  action  ?  and  if  so,  then,  2d,  To  what  extent  is  the  com- 


JULY  TERM,  1S4L  475 

Coster  v.  Monroe  Manufacturing  Co. 

plainant  bound  by  his  covenant ;  or,  in  other  words,  what  is  its 
true  construction  and  meaning  ? 

1.  Upon  the  first  question,  I  am,  after  careful  consideration, 
clearly  of  opinion,  that  it  is  the  bounden  duty  of  this  court  to 
take  notice  of  a  defence  of  this  character,  and  either  stay  the  suit 
oa  the  mortgage  until  the  damages  are  ascertained  by  a  suit  at 
law,  or  by  directing  an  issue  t»  settle  the  liability,  or  by  a  refer- 
ence to  a  master.  To  allow  the  holder  of  a  mortgage  to  go  on 
and  under  a  decree  to  establish  his  claim  to  his  whole  demand, 
v/hcn  the  defendant  shows  by  the  record  of  recovery  against  him 
that  a  part  of  the  very  land  for  which  he  gave  the  mortgage  did 
not  belong  to  the  mortgagee  at  the  time  he  conveyed,  and  that 
too  against  the  express  covenant  of  the  mortgagee  would,  I  think, ' 
violate  that  sound  principle  of  the  court  which  requires  that  com- 
pletc  justice  be  done  to  all  parties,  and  not  by  halves.  Take 
t  his  very  case,  where  the  title  of  a  part  only  of  the  propertyfturns 
out  to  be  defective.  A  decree  for  the  whole  amount  might  take 
from  the  defendant  that  portion  of  the  property  for  which  ho  has 
^ood  title,  when,  if  the  abatement  was  made  for  his  loss,  it  might 
be  in  his  power  to  pay  off  the  balance  remaining  against  him,  or 
make  such  arrangement  as  to  save  his  property ;  and  all  this 
c;nbarassmcnt  created  by  the  act  of  the  mortgagee  in  selling 
property  for  which  he  had  no  title.  There  is  another  obvious 
propriety  in  this  course.  The  mortgagee  may  be  u/n'jle  to  pay 
the  damages  at  the  end  of  a  suit  on  his  covenant,  ar.cl  if  so,  he 
(jets  the  whole  of  his  money  on  the  mortgage,  and  the  entire  loss 
is  visited  on  the  purchaser.  This  must  be  undo,  jtooa  as  apply- 
ing only  to  a  case  where  the  original  parties  arc  tofore  the  court; 
v/liat  view  should  be  taken  if  the  mortgage  is  a' .signed  to  other 
hands,  need  not  here  be  considered,  for  the  original  mortgagee 
and  covenantor  is  the  party  now  before  the  court  as  complainant. 
I  confess  I  have  not  been  able  to  find  this  subject  considered  in 
the  cases  as  I  had  expected,  and  yet  it  appears  to  me  GO  obvi- 
ously correct  in  principle,  that  I  cannot  doubt  its  propriety  .  The 
great  objection  is  the  difficulty  in  this  court  overtaking  to  scttla 


476  CASES  IN  CHANCERf, 

Coster  v.  Monroe  Manufacturing  Co. 

unliquidated  damages.  I  know  this  is  a  difficulty,  and  yet  in 
some  cases  a  court  of  equity  will,  to  effectuate  justice,  settle 
damages  which  are  unliquidated.  But  if  this  obstacle  should  be 
deemed  insuperable,  still  it  would  constitute  no  sound  objection 
to  the  court  staying  the  complainant's  recovery  on  his  mortgage 
until  a  reasonable  opportunity  be  afforded  the  defendant  to  ascer- 
tain his  damages  at  law,  and  then  allow  that  amount  to  be  offset. 
"Wliich  of  these  courses,  to  ascertain  the  damages  under  the 
covenant,  should  be  pursued,  might  depend  on  the  peculiar  cir- 
cumstances attending  the  case,  but  it  would  seem  to  me  it  should 
as  a  general  rule  be  referred  to  a  master,  unless  the  complainant 
requires  a  trial  at  law.  If  the  defendant  claims  the  allowance 
hero,  he  should  be  content  with  the  forms  of  proceeding  in  this 
court,  which  is  by  reference  to  a  master.  To  settle  the  dama- 
ges, and  thus  close  the  whole  controversy  in  one  action,  accords 
well  with  the  familiar  principle  of  a  court  of  equity,  of  prevent- 
ing a  multiplicity  of  suits. 

The  fear  expressed  by  the  complainant's  counsel,  that  his  client 
might  not  be  protected  by  a  decision  here,  but  be  called  upon 
again  in  a  court  of  law,  and  by  the  original  parties  to  the  cove- 
nant, cannot,  I  think,  have  any  reasonable  foundation.  This 
is  a  covenant  to  them,  their  heirs  and  assigns  ;  it  was  made  on 
the  same  day  with,  and  on  the  back  of  the  deed,  and  must  re- 
ceive the  same  construction  as  if  made  in  the  body  of  the  deed ; 
and  I  can  view  it  only  as  a  covenant  running  with  the  land  to 
the  extent  of  ttce  complainant's  interest  in  that  land.  The 
property  having  been  conveyed  by  regular  and  lawful  convey- 
ances to  the  present  defendants,  they  alone  are  entitled  to  the 
benefit  of  this  covenant ;  they  alone  are  the  party  injured  ;  and 
having  once  submitted  themselves  to  the  jurisdiction  of  this 
court,  they  cannot,  upon  any  principle,  seek  for  further  allow- 
ance at  the  hands  of  another. 

An  actual  eviction  I  do  not  deem  necessary  to  give  a  right  to 
the  defendant  to  his  damages  on  his  covenant,  provided  there  has 
been  a  trial  and  judgment  in  ejectment.  This,  it  may  be  fairly 


JULY  TERM,  mi.  477 

Coster  v.  Monroe  Manufacturing  Co. 

inferred,  was  the  chancellor's  opinion  in  the  case  cited  by  tho 
counsel  for  the  complainant  from  2  John.  Chan.  524.  Tn  that 
case  a  purchaser  bought  under  covenants  of  warranty,  and  g:ivo 
his  bond  arid  mortgage  for  a  part  of  the  purchase  money.  After- 
wards a  suit  was  brought  at  law  to  recover  the  money  on  the 
bond,  and  an  injunction  obtained  restraining  that  suit  on  an  al- 
legation that  the  title  to  the  land  conveyed  turned  out  to  be  de- 
fective. The  chancellor  dissolved  the  injunction,  saying,  that 
before  a  court  of  equity  could  interfere,  "  a  previous  eviction  or 
trial  at  law  is  as  a  general  rule  indispensable."  Here  has  been 
a  trial  at  law,  and  no  doubt  remains  on  that  part  of  the  case.  It 
has  been  repeatedly  held,  that  the  court  will  not  act  upon  a  mere 
allegation  that  a,  title  is  defective,  it  must  first  be  established  at 
law  ;  and  where  that  is  done,  and  the  proof  of  the  proceedings 
properly  made,  this  court  will  take  notice  of  them  and  act  ac- 
cordingly. I  refer  also,  as  bearing  upon  this  subject,  to  Hum- 
pus  v.  Plainer,  1  John.  Chan.  21 3,  and  to  an  anonymous  case 
in  2  Chan.  Cases,  19.  As  between  the  original  parties,  then, 
where  a  title  is  shown  to  be  defective  in  part  by  a  recovery  at 
law,  the  court  will  allow  the  defendant  an  opportunity  to  offset 
the  amount  of  his  damages  sustained  under  a  covenant,  before 
decreeing  a  sale  of  the  mortgaged  premises  under  the  mort- 
gage. 

2.  This  view  leads  me,  necessarily,  to  consider  the  true  con- 
struction of  the  covenant  entered  into  by  the  complainant.  The 
important  part  of  the  covenant  is  as  follows :  "  I,  John  G.  Coster, 
one  of  the  grantors,  in  respect  of  my  proportion,  being  one  hun- 
dred and  forty-nine  shares  out  of  the  six  hundred  and  eighty-two 
shares,  and  of  the  like  proportion  of  the  consideration  monies, 
but  not  in  respect  of  the  residue  of  said  shares  or  of  the  said  con- 
sideration money,  covenant  and  agree  with  Francis  Mann  and 
John  "W.  Berry,  their  heirs  and  assigns,  that  I  am  the  owner  of 
the  said  one  hundred  and  forty-nine  shares,  and  have  good  right 
to  sell  the  same  in  manner  within  mentioned,  and  that  the  sam 
are  free  of  all  incumbrances,  and  that  I  will  warrant  and  dofen 


473  CASES  IN  CHANCERY, 

Costor  v.  Monroe  Manufacturing  Co. 

the  title  to  the  within  premises  to  the  extent  of  said  shares  and 
no  further"  The  defendants  insist  that  the  words  in  this  cove- 
nant, "  to  the  extent  of  said  shares,"  although  the  title  to  a  part 
only  of  the  premises  proved  defective,  makes  the  complainant 
liable  to  the  full  amount  of  his  consideration  money,  and  which 
in  this  case  would  cover  the  whole  loss.  Such  is  not,  in  my 
opinion,  the  true  construction  of  this  instrument.  This  would 
make  the  complainant  liable  beyond  his  own  shares,  he  would 
clearly  answer  for  the  shares  of  others,  when  he  declares  ex- 
pressly that  he  covenants  only  "  to  the  extent  of  his  shares."  He 
does  not  mean  to  say  any  thing  more,  than  that  he  will  protect 
the  purchasers  so  far  as  his  shares  are  interested.  Had  the  title 
to  the  entire  property  failed,  he  must  have  answered  to  the  full 
extent,  but  as  it  failed  partially,  he  must  answer  only  partially. 
This  is  the  construction,  I  think,  upon  the  fair  literal  interpreta- 
tion of  the  words  used.  But  we  are  not  left  to  so  narrow  a  rule 
in  arriving  at  the  intent  of  covenants,  for  it  is  a  settled  rule,  both 
at  law  and  in  equity,  to  look  to  the  evident  meaning  of  the  par- 
ties. The  intention  of  the  parties  is  to  be  carried  into  effect : 
Plattfs  Treatise  on  Covenants,  136.  That  writer  says,  very 
properly, "  the  intention  is  not  to  be  collected  from  the  language 
of  a  single  clause  in  a  deed,  but  from  the  entire  context,  and  it 
is  immaterial  in  what  part  of  a  deed  any  particular  covenant 
may  be  inserted,  for  exposition  must  be  upon  the  whole  instru- 
ment, ex  antecedentibus  et  consequentibus,  and  according  to 
the  reasonable  sense  and  construction  of  the  words."  The  com- 
plainant did  not  profess  to  own  beyond  a  certain  number  of 
shades,  and  his  covenant  was  that  he  owned  those  shares,  and 
had  good  right  to  sell  them,  that  they  were  free  of  encumbran- 
ces, and  to  the  extent  of  those  shares  he  would  warrant  and 
defend  the  title  of  the  purchaser.  There  was  no  reason  why  he 
should  go  beyond  this.  There  is  nothing  in  the  case  to  sho\7 
that  he  had  the  slightest  interest  in  the  shares  of  the  other 
grantors,  and  why  should  he  enter  into  any  obligation  as  to 
them  ?  The  fact  that  the  mortgage  was  made  to  him  for  twenty 


JULY  TERM,  1841.  479 


Coster  T.  Monroe  Miurafartvrin<;  Co. 


thousand  dollars  of  the  purchase  money,  cannot  vary  the  cast?. 
Jliat  was  doubtless  the  subject  of  some  arrangement  between 
the  parties,  and  can  have  no  bearing  upon  this  question.  My 
attention  was  properly  called,  by  the  counsel  of  the  complainant, 
to  the  phraseology  used  in  the  covenants  in  the  body  of  the 
deed,  to  show  that  the  grantors  had  distinct  and  independent  in- 
terests, and  never  intended  to  be  bound  in  any  way  for  each 
Dther.  In  the  commencement  of  the  covenanting  part  of  tho 
deed,  the  language  is,  "  And  the  said  parties  of  the  first  part 
hereby  severally,  each  for  himself  and  his  heirs,  &c.,  and.  his 
acts  and  not  jointly  nor  one  for  the  other,  or  heirs,  &c.,  of  the 
other,  in  their  respective  rights  and  character,  and  in  regard  to 
their  respective  proportions,  aforesaid,  and  not  one  for  the  pro- 
portion of  the  other,  covenant,  &c."  Taking  this  language  w.vth 
that  in  the  separate  covenant  made  by  the  complainant  at  the 
same  time  on  the  back  of  the  deed,  which  still  goes  on  to  staic 
his  proportionate  share,  and  is  confined  to  that,  there  is  no  room, 
in  my  judgment,  to  doubt  wliat  was  the  intent  and  meaning  of 
the  parties.  If  four  men  each  own  a  quarter,  and  they  cove- 
nant separately  for  their  respective  shares,  if  the  whole  title  is 
defective,  they  must  respond  to  the  full  amount,  but  if  only  a 
part  of  the  property  is  lost,  they  are  to  answer  for  no  more  than 
their  share  in  the  part  so  lost.  What,  then,  was  the  share  of 
the  complainant  in  that  part  of  the  property  of  which  the  title 
proved  defective  ?  The  value  being  ascertained  by  a  compari- 
son of  the  part  so  lost  to  the  purchaser,  with  the  entire  property 
purchased,  and  dividing  such  ascertained  value  into  six  hundred 
and  eighty-two  shares,  the  complainant  is  bound  for  one  hun- 
dred and  forty-nine  of  those  shares,  and  no  more.  In  making 
this  estimate,  while  the  amount  paid  by  the  defendant  for  this 
land  a  second  time  is  proper  evidence  to  be  considered  by  the 
master,  it  is  no  way  conclusive  upon  his  judgment.  lie  will 
x;c  at  liberty  to  vary  it  if  he  shall  think  it  right  so  to  do. 

1  shall  refer  the  case  to  a  master,  to  ascertain  the  amount  of 
damages  which  the  complainant  is  answerable  for  to  the  dc- 


480  CASES  IN"  CHANCERY, 

Coster  v.  Monroe  Manufacturing  Co. 

fondant  on  his  covenant,  in  conformity  with  the  construction 
here  given  to  that  instrument,  and  to  report  the  amount  due  the 
complainant  on  his  bond  and  mortgage,  after  deducting  such 
amount  therefrom,  and  that  he  take  the  evidence  down  in  wri- 
ting, and  send  up  the  same  to  this  court. 
Order  of  reference. 

CITED  in  Hopper  v.  Luikins,  3  Gr.  Ch.  156  ;  Gousc  v.  Boyle*,  Id.  218  ; 
Glenn's  Ad.  v.  "Whipple,  1  Beat.  51. 


THOMAS  SALTER  and  others  v.  JONATHAN  D.  WILLIAMSON  and 
WILLIAM  D.  WILLIAMSON. 

The  jurisdiction  of  a  court  of  chancery  over  the  settlement  of  accounts  of 
executors  and  administrators,  is  too  well  established  at  this  day  to  admit  of 
question. 

The  authority  conferred  by  statute  upon  the  orphan's  court,  in  relation  to  tho 
Bcttlem  ntof  accounts  of  executors  and  administrators,. was  only  a  cumu- 
lative remedy  afforded  to  parties,  and  was  never  intended  to  deprive  the 
court  of  chancery  of  its  jurisdiction. 

The  court  of  chancery  and  the  orphan's  court  have  on  this  subject  a  concur- 
rent jurisdiction. 

T7here  there  nro  LO  speciiil  reasons  for  going  into  equity,  the  orphan's  court 
is  the  proper  tribunal,  end  should  be  selected  by  all  parties  for  settling  the 
accounts  of  executors  and  administrators. 

The  fact  that  a  i  executor  or  administrator  has  exhibited  his  account  in  the 
orphan's  court,  and  that  steps  have  been  taken  towards  a  finalsettlement  of 
the  account  ia  that  court,  will  not  deprive  the  court  of  chancery  of  its  juris- 
diction over  the  account.  Until  tho  final  decree  of  the  orphan's  court,  there 
is  no  legal  impediment  to  prevent  the  court  of  chancery  taking  cognizance 
of  the  case. 

But  where  an  account  has  bemi  exhibited  in  the  orphan's  court,  and  especially 
if  considerable  advance  has  been  made  towards  tho  adjustment  of  the  ac- 
count, a  court  of  equity  will  not  interfere  unless  there  ctist  some  substan- 
tial ro  i  on  for  invoking  its  aid. 

THE  bill  states,  that  Matthias  Williamson,  late  of  the  county 
of  Essex,  was  in  his  life  time,  and  at  the  time  of  his  death, 


JULY  TERM,  1841.  401 

Suiter  et  aU  v,  Williamfloii,  udm'r. 

seized  and  possessed  of  considerable  personal  estate  :  that  the 
said  Matthias  "Williamson  died  intestate,  on  or  about  the  20th 
day  of  March,  1836,  leaving  the  complainants  and  tho  defend- 
ants, his  children  and  only  heirs  at  law  and  next  of  kin,  him 
surviving.     That  eoon  after  the  death  of  the  said  intestate, 
C.  L.  \V.,  one  of  the  complainants,  and  J.  D.  W.,  one  of  the 
defendants,  obtained  grant  of  letters  of  administration  from  th* 
surrogate  of  the  county  of  Essex,  upon  the  estate  of  said  intes- 
tate ;  and  that  at  the  term  of  June,  1837,  the  orphan's  court  oi 
the  county  of  Essex  revoked  the  letters  of  administration  grant- 
ed to  the  said  0.  L,  W.,  by  means  whereof  tho  sole  administra- 
tion of  the  estate  of  the  said  intestate  devolved  upon  the  said 
J.  D.  "W. ;  who  by  virtue  of  the  said  letters  of  administration 
possessed  himself  of  the  personal  estate  and  effects  of  the  said 
intestate,  greatly  more  than  sufficient  to  satisfy  his  just  debts 
and  funeral  expenses*      That  the  said  W.  D.  W.  was  advanced 
by  the  eaid  intestate  in  his  life  time  to  a  very  considerable 
amount,  and  greatly  exceeding  the  whole  personal  estate  of  tho 
said  intestate  at  the  time  of  his  death  :  and  that  the  said  "W.  D. . 
"W\  was  indebted  to  the  said  intestate  at  the  time  of  his  death, 
beyond  his  proportion  of  the  intestate's  personal  property  as  one- 
of  the  next  of  kin,  and  that  the  intestate  had  paid  large  sums! 
of  money  for  the  said  W.  D.  W.  which  remained  due  to  the  in- 
tertatc  at  the  time  of  his  death.     That  in  the  inferior  court  of 
common  pleas  at  the  county  of  Essex,  at  the  term  of  June,  ISIS,, 
the  intestate  recovered  a  judgment  against  the  said  W.  D.  "W.. 
for  two  thousand  live  hundred  dollars,  which  still  remains  unpaid 
and  unsatisfied,  arid  wliich  became,  at  the  death  of  the  intestate,, 
a  lion  upon  the  portion  of  the  real  estate  of  the  said  intestate  to- 
which  the  said  W.  D.  "W.  became  entitled  as  one  of  the  heirs  at 
law  of  the  said  intestate.    That  in  tho  year  1837  the  said  AV.  D. 
"VV.  sold  and  conveyed  to  tho  said  J.  D.  W.  all  his  right,  title  and 
intescst  in  the  real  and  personal  estate  of  the  said  intestate,  fora 
sum  very  inadequate  to  the  value  of  one  seventh  of  the  real  and 
personal  estate  of  tho  said  intestate,  the  proportion  to  which  the 
said  W.  D.  W.  was  entitled ;  and  that  the  said  J.  D.  "W.,  at  the 
62 


482  CASES  IN  CHANCERY, 

Salter  etal.  v.  "Williamson,  ndm'r. 

time  he  made  the  said  purchase  and  accepted  the  conveyance 
and  assignment  of  the  said  real  and  personal  estate,  had  full 
"knowledge  of  the  existence  of  the  said  judgment  against  the  said 
TV.  D.  TV.  and  the  lien  of  said  judgment  on  the  said  real  estate, 
and  of  all  the  other  facts  and  circumstances  above  set  forth. 
That  as  soon  as  the  knowledge  of  the  said  purchase  by  J.D.W. 
from  TV.  D.  TV.  came  to  the  knowledge  of  the  complainants, 
they  by  their  attorney  applied  to  the  said  J.D.TV.  and  earnestly 
solicited  him,  as  the  administrator  of  the  said  intestate,  to  cause 
such  legal  proceedings  to  be  instituted  on  the  said  judgment 
against  the  said  TV.  D.  TV.  as  might  be  necessary  to  recover  from 
him  the  amount  due  from  him  to  the  intestate,  or  else  that  the 
said  J.  D.  TV.  having  purchased  all  the  interest  of  the  said 
TV.  D.  TV.  in  and  to  the  real  and  personal  estate  of  the  intestate, 
would  account  to  the  complainants  in  the  amount  due  from  the 
Baid  TV.  D.  TV.  to  the  intestate,  at  least  to  the  amount  of  the 
value  of  such  interest  so  purchased,  deducting  his  own  share 
thereof  ;  that  instead  of  so  doing,  the  said  J.  D.  TV.  has  taken 
no  measures  since  the  death  of  the  said  intestate,  by  execution 
or  seire  facias,  to  enforce  the  payment  on  the  money  due  on  said 
judgmentjOr  the  lien  created  thereby,  but  since  the  said  purchase 
by  the  said  J.  D.  TV.  of  the  said  TV.  D.  TV.,  at  the  term  of  Sep- 
tember, 1837,  of  the  supremo  court  of  New-Jersey,  the  said 
J.  D.  TV.,  as  administrator  as  aforesaid,  caused  to  be  instituted 
against  the  said  TV.  D.  TV.  an  action  of  debt  upon  the  said  judg- 
ment in  favor  of  the  said  intestate,  against  the  said  TV.  D.  TV., 
and  such  proceedings  were  thereupon  had  that  the  said  cause  is 
pending  at  issue  and  noticed  for  trial  at  the  next  Essex  circuit; 
the  object  of  which  proceeding,  on  the  said  judgment,  the  com- 
plainants are  advised,  is  to  relieve  the  said  J.  D.  TV.  and  the  es- 
tate purchased  by  him  from  the  said  TV.  D.  TV.  from  being  an- 
Bwerable  for  said  judgment.  The  bill  insists  that  the  judgment 
recovered  by  the  intestate,  as  aforesaid,against  the  said  TV.D.  TV. 
having  become  upon  the  death  of  the  said  intestate,  a  lien  upon 
the  real  estate  of  said  intestate  which  descended  to  the  said  TV. 
D.  TV.,  the  said  judgment  should  be  established  and  declared  to 


JULY  TERM,  1841.  483 


Salter  et  al.  v.  Williamson,  adm'r. 


be  still  a  subsisting  lien  thereon ;  and  in  case  the  said  lien  has 
been  lost  or  destroyed,  that  it  has  been  through  the  gross  negli- 
gence of  the  said  J.  D.  W.  and^by  collusion  with  the  said  W.  D. 
W.,  and  that  the  said  J.  D.  W.  ought  to  be  charged  with  the 
amount  due  on  said  judgment,  or  else  that  the  proceeds  ar'sing 
from  the  sale  of  the  real  estate,  advertised  to  be  sold  as  hereafter 
stated,  which  descended  from  the  intestate  to  the  said  "W.  D.  W. 
as  aforesaid,  may  be  declared  to  be  held  in  trust  to  satisfy  what 
is  due  on  said  judgment. 

The  bill  further  charges,  that  the  said  J.  D.  "W.,  as  one  of 
the  heirs  at  law  of  the  said  intestate,  applied  to  one  of  the  jus- 
tices of  the  supreme  court  of  this  state  for  the  appointment  of 
commissioners  to  divide  the  real  estate  of  the  said  intestate ;  that 
such  commissioners  were  accordingly  appointed  on  the  17th  of 
February,  1838  ;  that  a  report  has  been  made  by  said  commis- 
sioners to  the  said  justice  that  the  said  real  estate  could  not  be 
divided,  whereupon  the  said  justice  made  an  order  to  sell  the 
same  at  public  auction ;  and  that  the  said  commissioners,  by  vir- 
tue of  said  order,  advertised  the  same  for  sale,  and  that  the  said 
sale  is  advertised  to  be  held  on  the  28th  day  of  July  instant. 
That  the  real  estate  of  the  intestate  consists  of  various  dwelling- 
houses  and  farms,  and  might  be  sold  to  a  great  advantage  if  sold 
on  reasonable  and  accommodating  terms  and  credit,  but  the  com- 
plainants believe  that  if  the  said  real  estate  is  sold  in  the  present 
state  of  depressed  prices  and  pecuniary  embarrassments  of  the 
country,  it  must  be  sold  at  a  great  sacrifice ;  and  that  the  com- 
plainants, or  most  of  them,  have  not  the  means  of  becoming 
purchasers  themselves  of  any  considerable  part  of  the  said  real 
estate.  That  the  order  for  the  sale  of  the  said  real  estate,  herein 
before  referred  to,  was  made  in  pursuance  of  an  act  of  the  legis- 
lature of  the  state  of  New-Jersey,  entitled,  "An  act  supplemen- 
tary to  the  act,  entitled,  an  act  for  the  more  easy  partition  of 
lands  held  by  coparceners,  joint  tenants  and  tenants  in  common, 
and  the  act  entitled,  an  act  to  ascertain  the  power  and  authority 
of  the  ordinary  and  his  surrogates,  to  regulate  the  jurisdiction  of 
the  prerogative  court,  and  to  establish  an  orphan's  court  in  the 


484:  CASES  IN  CHANCEKr, 

Salter  et  nl.  v.  Williamson,  adm'r. 

several  counties  of  this  state,"  passed  the  7th  day  of  February, 
1816 ;  by  the  fourth  section  of  which  act  it  is  enacted,  That 
no  sale  or  conveyance  of  any  tract  or  tracts  of  land  or  real  estate 
made  by  virtue  of  this  act,  shall  impair,  or  in  any  wise  affect  the 
rights  and  interest  of  any  person  or  persons  therein,  other  than 
the  persons  being  or  claiming  to  be  coparceners,  joint  tenants  9r 
tenants  in  common  in  the  same.  That  although  the  complain- 
ants T.  S.  and  F.  B.,  in  right  of  their  respective  wives,  are  ten- 
ants in  common  with  others  in  the  real  estate  so  advertised  to  be 
sold,  yet  the  complainants  are  advised  and  insist  that  the  estates 
and  interests  of  S.  II.  S.  and  M.  B.,  the  wives  of  the  said  T.  S. 
and  F.  B.  respectively,  are  not  liable  to  be  sold  by  the  said  com- 
missioners and  converted  into  personal  property,  against  their 
will,  and  that  they  cannot  be  deprived  of  their  inheritance  with- 
out their  consent,  which  they  have  not  given  and  now  refuse  to 
give ;  and  that  their  rights  are  also  protected  by  the  sixth  section. 
of  an  act  of  the  legislature  of  the  state  of  New-Jersey,  entitled, 
"An  act  granting  relief  in  certain  cases  against  collusive  judg- 
ments and  wrongful  alienations  of  land,"  passed  the  2d  day  of 
March,  1798.  That  the  said  J.  D.  W.  and  the  said  commis- 
sioners, by  virtue  of  the  order  for  sale  made  as  aforesaid,  are 
proceeding  to  sell  the  said  real  estate,  and  will  sell  the  same  un- 
less restrained  by  this  court  r  and  insists  that  no  sale  of  the  said 
real  estate  ought  to  be  made  without  saving  the  rights  and  estates 
of  S.II.S.  and  M.  B.  in  and  to  the  real  estate  descended  to  them 
from  their  father,  and  without  first  deciding  whether  the  judg- 
ment recovered  by  the  intestate  against  the  said  W.D.W.  is  or 
is  not  a  subsisting  lien  on  the  real  estate  of  the  said  intestate  de- 
scended to  the  said  W.  D.  W.  as  aforesaid,  and  how  the  money 
due  on  said  judgment  should  be  paid  and  satisfied.  tThat  since 
the  death  of  the  intestate  the  eaid  J.  D.  W.  has-  been  in  the  re- 
ceipt of  the  rents  and  profits  of  the  whole  or  a  very  considerable 
part  of  the  Teal  estate  whereof  the  said  intestate  died  seized,  and 
has  never  accounted  to  the  complainants  therefor,  and  that  he 
has  also  the  title  deeds  of  the  said  estate,  which  the  complainants 
pray  he  may  be  directed  to  produce.  Prayer  tliat  the  said  J  J). 


JULY  TERM,  1841  485 

Salter  et  al.  v.  Williamson,  adra'r. 

W.  and  the  said  commissioners  may  be  restrained  by  injunction 
f mm  selling  any  part  of  the  said  real  estate  until  the  further  or- 
der of  the  court :  that  the  judgment  recovered  by  the  intestate  in 
his  life  time  against  the  said  "W.  D.  "W.  may  be  decreed  to  be  a 
lien  on  the  share  of  the  real  estate  of  the  said  intestate  which 
upon  his  death  descended  to  the  said  W.D.W.,  or  that  the  said 
judgment  may  be  satisfied  out  of  the  proceeds  of  the  sale  there- 
of, or  that  the  said  J.  D.  W.  may  be  charged  with  the  amount 
due  on  said  judgment :  that  the  estates  and  interests  of  S.H.S. 
and  M.  B.  may  be  established,  and  decreed  not  liable  to  be  sold 
by  the  said  commissioners :  that  partition  be  made  of  all  the  real 
estate  whereof  the  said  intestate  died  seized,  among  his  children 
and  heirs  at  law,  according  to  the  practice  of  this  court,  and  all 
necessary  conveyances  be  executed  for  carrying  such  partition 
into  effect :  that  an  account  may  be  taken  of  the  rents  and  profits 
of  the  said  real  estate  which  have  been  received  by  the  said  J.  D. 
TV.,  or  might  have  been  received  by  him  without  his  wilful  de- 
fault, and  payment  decreed  of  what  shall  be  found  due  from  him 
on  such  account  to  the  complainants,  according  to  their  respect- 
ive shares  and  interests  in  the  same;  and  that  the  complainants 
may  have  such  other  relief,  &c. 

Upon  filing  the  bill  an  injunction  issued,  pursuant  to  the  prayer 
of  the  bill. 

Separate  answers  were  filed  by  the  defendants.  The  answer 
of  J.  D.  W.  admits  that  M.  W.  died  intestate,  at  the  time  stated 
in  the  bill  of  complaint,  seized  and  possessed  of  considerable  rcaJ 
and  personal  estate,  and  leaving  the  complainants  and  defendants 
his  children  and  only  heirs  at  law  and  next  of  kin  him  surviving : 
that  administration  upon  the  estate  of  the  intestate  was  granted 
by  the  surrogate  of  the  county  of  Essex  to  this  defendant  and 
C.  L.  W.:  that  the  letters  to  the  said  C.  L.  "W.  were  subsequent- 
ly revoked,  and  the  sole  administration  vested  in  this  defendant : 
that  upon  the  settlement  of  the  accounts  of  the  said  C.  L.  W.  as 
administrator,  there  was  found  in  his  hands  a  balance  of  two 
thousand  three  hundred  and  fifty-nine  dollars  and  sixty-one 
cents,  which  exceeds  his  distributive  share  of  the  personal  estate 


486  CASES  IN  CHANCEKY, 

Salfcer  et  al.  v.  Williamson,  adm'r. 

of  the  intestate,  and  which,  although  demanded,  he  refused  to 
pay  over  to  this  defendant.  That  this  defendant  exhibited  his 
accounts  as  administrator  as  aforesaid,  for  settlement,  in  the  or- 
phan's court  of  the  county  of  Essex,  and  exceptions  being  filed 
thereto,  it  was  referred  to  auditors,  who  reported  a  balance  in 
this  defendant's  hands  of  twelve  thousand  four  hundred  and  sixty- 
five  dollars  and  sixty-five  cents ;  from  which  one  thousand  six 
hundred  and  fifty  dollars  ought  to  be  deducted,  that  amount  hav- 
ing been  twice  charged  against  this  defendant  by  the  auditors  in 
their  report ;  which  leaves  in  this  defendant's  hands  the  sum  oi 
ten  thousand  eight  hundred  and  fifteen  dollars  ancl  sixty-five 
cents,  to  be  distributed  to  the  next  of  kin  of  the  intestate,  ac- 
cording to  law,  to  one  seventh  of  which  this  defendant  is  entitled 
as  one  of  the  next  of  kin.  Admits  the  indebtedness  of  "W.  D. 
"W.  to  the  intestate,  as  stated  in  the  complainant's  bill,  and  that 
the  amount  due  from  the  said  W.  D.  "W.  to  the  intestate  at  his 
death  exceeded  the  share  of  the  said  W.  D.  "W".  in  the  intestate's 
estate  :  that  a  judgment  was  recovered  by  the  intestate  in  his  life 
time  against  the  said  W.  D.  W.  for  two  thousand  five  hundred 
dollars  debt :  that  this  defendant  was  advised,  that  inasmuch  as 
the  said  judgment  was  recovered  in  the  common  pleas  of  Essex 
county,  the  same  was  not  a  lien  upon  that  part  of  the  real  estat.) 
of  the  intestate  which  descended  to  the  said  W.  D.  "VST.  which 
was  not  situated  within  the  said  county;  and  that,  by  the  advice 
of  counsel,  he  caused  a  suit  to  be  instituted  in  the  supreme  court 
upon  said  judgment,  in  order  to  create  a  lien  upon  the  real  estate 
of  the  said  "W.  D.  W.  not  within  the  said  county,  which  is  still 
pending.  Denies  that  the  said  suit  was  instituted  to  relieve  the 
share  of  the  said  W.  D.  W.  from  the  lien  of  said  judgment. 
Admits  the  sale  by  W.  D.  W.  of  his  share  of  the  real  and  per- 
sonal estate  of  the  intestate  to  this  defendant,  on  or  about  the 
28th  day  of  July,  1837,  for  which  this  defendant  gave  his  bond 
for  five  thousand  dollars,  conditioned  for  the  payment  to  the  said 
"W".  D.  "W.  of  twenty-five  dollars  per  month  during  his  life,  an:l 
on  the  death  of  the  said  "W.  D.  W.  fifteen  hundred  dollars,  if 
guch  balance  remained  in  the  hands  of  this  defendant,  to  bo  di- 


JULY  TERM,  1841.  437 


Salter  etal.  V.  Williamsou.  adm'r. 


vided  among  the  children  of  the  said  "W.  D.  "W.;  which  consid- 
eration was  more  than  adequate  to  the  value  of  said  share  ;  but 
that,  owing  to  dissatisfaction  expressed  by  some  of  the  complain- 
ants in  regard  to  the  said  purchase,  this  defendant,  on  the  18tl% 
day  of  June,  1838,  executed  to  the  said  W.  D.  W.  a  reconvey 
ancc  of  the  said  share,  upon  which  this  defendant's  bond,  given 
for  the  purchase  thereof,  was  delivered  up  and  canceled.  Denies 
that  the  said  purchase  was  made  with  a  view  of  relieving  the 
said  share  from  the  lien  of  said  judgment,  which  lien  this  de- 
fendant has  always  admitted  and  still  admits.  That  the  said 
commissioners  can  only  sell  the  said  share  subject  to  the  lien  of 
the  said  judgment ;  and  that  the  said  commissioners  would  1x5 
bound  to  pay  out  of  the  proceeds  of  the  sale  of  said  share,  tho 
amount  due  on  said  judgment,  to  the  administrator  of  the  said 
i.itestate,  to  be  by  him  distributed  among  the  next  of  kin,  or 
that  the  said  commissioners  would  become  trustees  for  the  said 
next  of  kin,  and  be  bound  to  pay  them  their  respective  shares 
of  the  said  proceeds.  Admits  the  application  by  this  defendant, 
as  one  of  the  heirs  at  law  of  the  said  intestate,  and  as  a  tenant 
i.i  common  of  the  real  estate  whereof  he  died  seized,  to  havo 
p  vrtitjon  made  thereof,  and  insists  upon  the  right  of  this  defend- 
ant to  have  such  partition  or  sale  made,  and  that  the  consent  of 
the  said  S.  EL.  S.  and  M.  B.  is  not  necessary  to  the  making  such 
partition  or  sale,  and  that  the  said  commissioners  arc  authorized 
by  law  to  sell  the  said  real  estate,  and  to  account  to  the  said  S. 
II.  S.  and  M.  B.  and  their  respective  husbands,  for  their  respec- 
tive portions  of  the  proceeds  of  the  said  sale.  Denies  that  thia 
defendant  has  a  large  portion  of  the  personal  estate  of  tho  said 
intestate,  or  of  the  rents  and  profits  of  his  real  estate  accrued 
since  his  death,  in  his  hands  unaccounted  for. 

The  answer  of  W.  D.  W.,  the  other  defendant,  admits  that  ho 
and  the  said  intestate  had  large  dealings  in  the  intestate's  life 
time  ;  that  the  intestate  recovered  the  judgment  for  two  thousand 
live  hundred  dollars,  specified  in  the  bill  of  complaint ;  but  tliat 
upon  a  fair  settlement  of  their  accounts  it  would  appear  that  tlio 
said  judgment  was  satisfied  and  a  balance  due  to  thia  defendant. 


488  CASES  IN  CHANCERY, 

Saltor  ot  al.  v.  .Williamson,  aclm'r. 

Denies  that  any  advancement  was  made  to  this  defendant  by  the 
intestate  in  his  life  time,  but  insists  that  all  their  dealings  were 
regular  business  transactions,  and  that  the  whole  claim  of  the 
intestate  against  this  defendant  has  been  paid  and  satisfied.  Ad- 
mits the  sale  and  conveyance  by  this  defendant  of  his  share  in 
the  personal  and  real  estate  of  the  intestate,  to  the  said  J.  D.  W., 
but  insists  that  the  same  was  bona  fide  and  for  a  valuable  con- 
sideration, and  that  the  said  share  has  since  been  reconveyed  to 
this  defendant,  as  stated  in  the  answer  of  the  said  J.  D.  "W. 

The  cause  was  heard  upon  the  bill  and  answers ;  the  only 
question  submitted  for  the  consideration  of  the  court,  being, 
whether  the  defendant,  as  administrator,  could,  under  the  cir- 
cumstances of  the  case,  be  called  upon  to  account  in  this  court. 

E.  Vanarsdale,  for  complainants. 

0.  S.  Hoisted,  for  the  administrator,  one  of  the  defendants. 
The  other  defendant  consenting  that  a  reference  be  made 
to  a  master  to  settle  the  accounts. 

Cases  cited  by  the  complainant's  counsel.  Simson  v.  Hart, 
14  John.  7?.  77;  5  JoJin  Rep.  167-8 ;  4  Griffith's  Law  Beg. 
1258;  Hoisted 's  Dig.  296;  \  Eq_.  Gas.  Abridged,  12,5.  9; 
Dulwich  College  v.  Johnson,  2  Vernon,  49 ;  1  Southard,  191 ; 
1  Maddocfc,  584 ;  Jeremy's  Eq.  504 ;  9  Wheaton,  542  ;  Man- 
uscript Opinions  of  Chancellor  Williamson  in  Garrdbrant  v. 
Lawrence,  and  Burtis  et  al  v.  Adm'rs  of  Hopkins,  and  of 
cJiancellor  Vroom  in  King-  v.  Etfrs  of  JBcrry* 

THE  CHANCELLOR.  Matthias  Williamson  died  in  March, 
1836,  intestate,  possessed  of  a  considerable  personal  and  real 
estate,  and  letters  of  administration  upon  that  estate  were  grant- 
ed by  the  surrogate  of  the  county  of  Essex,  to*  Charles  L.  "Wil- 
liamson and  Jonathan  D.  Williamson,  two  of  his  sons.  Subse- 
quently, the  letters  granted  to  Charles  were  revoked,  and  tho 
sole  administration  devolved  upon  Jonathan  IX  Williamson. 


JULY  TEKM,  1841.  480 

Salter  et  al.  v.  Williamson,  adni'r. 

The  intestate  left  seven  children,  three  sons  and  four  daughters. 
This  bill  is  filed  by  five  of  the  children,  as  the  heirs  at  law  and 
next  of  kin  of  the  intestate,  against  the  administrator,  for  a  set 
tleraent  of  the  accounts  of  the  estate  and  for  distribution  :  and 
William  D.  Williamson,  another  of  the  sons,  not  joining  in  the 
action  with  the  complainants,  is  made  a  defendant.  To  this  bill 
the  administrator  has  put  in  his  answer ;  and  the  sole  question 
to  be  settled  at  this  time  is,  whether  the  court  will  order  the  ac- 
count to  be  taken. 

The  jurisdiction  of  a  court  of  chancery  over  the  settlement  of 
accounts  of  executors  and  administrators,  is  too  well  established 
at  this  day  to  admit  of  question.  In  many  cases  it  is  necessary 
and  important  that  this  power  should  be  exercised.  The  author- 
ity conferred  by  statute  upon  the  orphan's  court  on  this  subject, 
was  only  a  cumulative  remedy  afforded  to  parties,  and  was  rev 
er  intended  to  deprive  this  court  of  its  jurisdiction.  There  are 
no  words  in  the  act  showing  any  such  intention  in  the  legislature. 
This  court  and  the  orphan's  court  have  on  this  subject  a  concur- 
rent jurisdiction,  and  the  object  of  vesting  this  power  on  settle- 
ment of  accounts  of  executors  and  administrators  in  the  orphan's 
court,  no  doubt,  was,  to  afford  in  all  ordinary  cases  a  more  easy, 
expeditious,  and  less  expensive  mode  of  closing  up  estates. 
Where  there  are  no  special  reasons  for  going  into  equity,  the  or- 
phan's court  is  the  proper  tribunal,  and  should  be  selected  by  all 
parties  for  settling  the  accounts  of  executors  and  administrators. 
That  there  are  cases  constantly  occurring,  where  the  limited  au- 
thority of  that  court  is  entirely  inadequate  to  reach  the  many 
difficulties  that  arise  on  the  settlement  of  estates,  is  within  the 
experience  of  all.  This  court  has,  therefore,  always  maintained 
its  power  to  take  cognizance  of  cases  of  this  character,  to  finally 
settle  the  accounts  of  executors  and  administrators,  and  to  order 
distribution  among  those  entitled.  The  manuscript  opinion  of 
chancellor  Williamson,  in  the  case  of  Burte  andotfiera  v.  Tfte 
Adm'rs  of  Hopkins,  fully  establishes  this  view  of  the  question, 
and  the  same  doctrine  is  recognized  by  chancellor  Vroom,  in  the 
case  of  King  v.  The  Etfrs  of  Berry.  Indeed,  cases  of  this 
63 


490  CASES  IN  CHANCERY, 

Saltor  et  al.  v.  Williamson,  ndm'r. 

character  are  continually  arising  in  tlie  court.  Even  where  a 
decree  lias  finally  passed  the  orphan's  court,  it  may  be  impeach- 
ed in  this  court  on  the  ground  of  fraud. 

But  I  do  not  suppose  it  was  the  serious  intention  of  the  de- 
fendant's counsel  to  dispute  this  proposition,  but  rather  to  object 
to  an  interference  in  this  particular  case,  after  the  progress  that 
has  been  made  in  the  orphan's  court.  The  administrator  pre- 
82nted  his  accounts  for  settlement  in  that  court ;  they  were  refer- 
red to  auditors,  who,  after  a  tedious  examination,  made  a  report 
on  them,  and  that  report  is  now  standing  upon  exceptions  filed 
by  the  complainants  or  some  of  them.  Until  the>  final  decree  of 
the  orphan's  court,  there  is  no  legal  impediment  in  the  way  of 
this  court  taking  cognizance  of  the  case,  if  they  think  proper  so 
to  do.  If  the  mere  fact  that  an  administrator  has  selected  the 
orphan's  court,  and  taking  steps  there  towards  gettinghis  accounts 
adjusted,  is  to  deprive  this  court  of  all  power  and  authority  in 
the  case,  then  it  must  resolve  itself  into  a  mere  scramble  for  ju- 
risdiction. This  cannot  be  the  test,  but  as  the  jurisdiction  of  the 
two  courts  is  concurrent,  if  one  of  the  parties  has  resorted  to  the 
orphan's  court,  and  especially  if  considerable  advance  (as  in  this 
case)  towards  the  adjustment  of  the  accounts  'has  been  made, 
then,  I  think,  this  court  should  not  interfere  unless  there  exist 
some  substantial  reason  for  invoking  the  aid  of  a  court  of  equity. 
It  would  be  a  great  hardship,  after  accounts  are  near  being  closed, 
perhaps  much  time  and  trouble  expended  in  their  adjustment,  to 
allow  a  party  at  his  mere  pleasure  to  transfer  the  jurisdiction 
from  that  court  to  this.  The  only  true  question,  then,  in  this 
case  is,  have  the  complainants  laid  a  proper  foundation  for  com- 
ing into  this  court? 

After  a  careful  examination  of  the  bill  and  answer,  and  re- 
flecting upon  the  situation  in  which  these  parties  are  placed,  I 
have  come  to  the  conclusion  that  there  are  in  this  case  good  rea- 
fonsfor  continuing  the  cause  in  this  court.  "With  the  limited 
powers  of  the  orphan's  court,  it  would  be  extremely  difficult,  if 
not  impossible,  to  adjust  the  many  questions  that  arise  respecting 
this  estate.  The  estate  itself  is  large,  the  inventory  amounting 


JULY  TEEM,  1841. 


Suiter  ot  ul.  v.  Williamson,  adm'r. 


to  upwards  of  seventy  thousand  dollars.  All  the  members  of 
this  family,  except  the  administrator,  desire  the  accounts  settled 
here  ;  for  although  "William  D.  "Williamson,  one  of  the  brotherr  , 
was  made  a  defendant,  yet  on  the  hearing  he  by  his  counsel  join- 
ed with  the  complainants  in  this  wish.  There  are  many  chargei 
in  the  bill,  as  to  which  the  complainants  are  entitled  to  a  dfe- 
covery  from  the  administrator.  The  administrator  was  the  con- 
fidential agent  of  the  intestate  in  his  life  time,  was  in  the  habit 
of  receiving  money  for  him,  transacted  much  of  his  business, 
and  was  in  fact  in  many  instances  the  only  person  who  kne.Tr 
the  true  situation  of  the  intestate's  business.  lie  has  conflicting 
accounts  with  the  estate,  and  seeks  compensation  for  his  agency, 
and  is  so  interwoven  with  it  as  to  render  a  disclosure  on  his  part 
indispensable.  The  bill  also  charges,  that  advancements  were 
made  by  the  intestate  to  his  children  in  his  life  time,  and  amorij 
the  rest  to  the  administrator,  and  that  sundry  checks,  which  the 
administrator  insists  are  barred  by  the  statute  of  limitations,  wcro 
advancements  made  to  him,  and  that  the  statute  does  not  apply 
to  a  case  of  that  character.  Nor  do  I  think  it  for  the  interest  of 
(he  administrator  that  the  cause  should  be  dismissed  from  this 
court.  Ho  is  interested  to  make  disclosures  showing  the  true 
state  of  the  accounts  between  him  and  his  father  ;  he  should 
desire  this  for  the  sake  of  giving  to  his  brothers  and  sisters  that 
reasonable  satisfaction  which  they  are  entitled  to.  The  answer 
lias,  I  make  no  doubt,  already  removed  several  wrong  impres- 
sions. So  far  as  the  accounts  have  undergone  investigation  be- 
fore auditors,  the  labor  will  not  be  entirely  lost,  as  it  cannot  fail 
to  expedite  the  examination  before  the  master. 

Let  a  decree  be  taken  in  the  usual  form,  referring  the  accounts 
to  a  master. 

CITED  in  Van  Mater  v.  Sicller,  1  Stock.  433  ;  Black  ex.  r.  FAita/J, 
Id.  585  ;  Claris  v.  Johnston,  2  Stock.  288  ;  Frey  v.  Dtmarat,  1  C.  E. 
Grt  239;  Search'*  Ad.  v.  ScarcVt  Ad.  12  C.  E.  Gr.  140. 


492  CASES  IN  CHANCERY, 


The  TRENTON  BANKING  COMPANY  v.  ZACHARIAH  ROSSELL,  Trus- 
tee of  ANN  E.  WOODRUFF. 

Where  an  issue  is  awarded  by  the  court  of  chancery,  to  be  made  up  in  the 
supreme  court,  the  transcript  and  postea  must  be  returned  to  the  court 
awarding  the  issue,  and  not  to  the  supreme  court. 

On  motion  for  a  new  trial  of  an  issue  at  law,  the  state  of  the  case,  and  histo- 
ry of  the  trial  ordered  to  be  prepared  by  the  solicitor  of  the  party  applying 
for  the  rule,  and  submitted  to  the  solicitor  of  the  adverse  party  for  his  ex- 
amination, and  in  c  iso  the  solicitors  are  unable  to  agree,  the  case  to  be  set- 
fed  by  the  judge  before  whom  the  issue  was  tried. 

AT  October  term,  1838,*  a  feigned  issue  was  awarded  in  this 
cause,  to  ascertain  the  fact,  whether  Thomas  L.  "Woodruff  ever 
paid  to  the  estate  of  Israel  Carle,  in  whole  or  in  part,  a  certain 
mortgage  given  bj  the  said  T.  L.  "W.  to  the  said  Israel  Carle. 

The  issue,  made  up  in  the  usual  form  in  the  supreme  court, 
was  tried  in  the  circuit  court  of  the  county  of  Mercer,  at  June 
term,  1841,  and  a  verdict  found  in  favor  of  Z.  Rossell,  trustes 
of  Ann  E.  Woodruff,  viz.  that  the  said  mortgage  had  not  been 
paid  bj  the  said  T.  L.  W.  The  record  and  postea  since  the 
last  term  had  been  returned  to  this  court,  together  with  the  usual 
certificate  of  the  judge  before  whom  the  cause  was  tried,  that 
lie  was  satisfied  with  the  verdict ;  and  the  cause  was  set  down 
for  hearing  at  the  present  term,  by  the  solicitor  of  Z.  Rossell, 
trustee,  &c.  The  cause  being  moved, 

J.  Wilson,  on  behalf  of  the  complainants,  resisted  the  hear- 
ing. He  insisted  that  the  cause  was  not  properly  before  the 
court :  that  the  issue  had  been  made  up  in  the  supreme  court, 
and  that  the  postea  should  be  returned  to  that  court,  that  the  par- 
ties might  have  an  opportunity  of  applying  there  for  a  new  trial. 
A  party  dissatisfied  with  the  verdict  upon  a  feigned  issue  ordered 
by  a  court  of  equity,  is  entitled  to  apply  for  a  new  trial  either  at 
law  or  to  the  court  which  awarded  the  issue :  1  Arch.  Prac. 
*  See  ante,  page  117. 


JULY  TEEM,  1841.  493 

Trenton  Banking  Co.  v.  Rossell,  trustee,  Ac. 

317;  Tidd,  805;  Doe  v.  Eoe,  1  Johns.   Cos.  402;  Den  v. 
Fen,  1  CainJs  E.  487. 

Watt  and  IT.  W.  Green,  contra,  cited  Vanalst  v.  Hunter, 
5  e707m.  C%<m.  J?.  150,  152 ;  1  Moulton's  Chan.  Prac.  49 ; 
]  Hoffman's  Chan.  Prac.  513,  515  ;  1  Newlanffs  Chan. 
Prac.  353. 

THE  CHANCELLOR.  The  postea  is  properly  returned  to  this 
court.  Where  an  action  at  law  is  directed  by  a  court  of  equity, 
the  postea  must  be  returned  to  the  court  in  which  the  suit  at  law 
is  instituted.  The  cause  is  there,  and  motions  for  new  trial  and 
all  other  proceedings  are  to  be  had  in  that  court.  But  when  an 
issue  is  directed  by  a  court  of  equity,  the  postea  must  be  return- 
ed to  the  court  which  ordered  the  issue,  and  all  the  subsequent 
proceedings  are  in  that  court. 

Wilson,  on  behalf  of  the  complainants,  "  The  Trenton  Bank- 
ing company,"  then  applied  to  the  court  for  a  rule  to  show  cause 
why  a  new  trial  should  not  be  granted,  on  the  ground  that  the 
judge  who  tried  the  cause  had  erroneously  charged  the  jury.  lie 
stated,  that  to  sustain  his  application  it  was  necessary  that  the 
chancellor  be  furnished  with  the  report  of  the  judge  who  tried 
the  cause  :  that  by  the  English  practice  the  judge's  report  is  ob- 
tained by  means  of  an  application  to  him  by  this  court :  1  New- 
land's  Chan.  Prac.  353.  In  New  York,  the  case  is  made  up 
in  the  usual  manner  as  a  case  at  law :  1  Hoffman's  Chan. 
Prac.  514.  In  the  absence  of  any  rule,  he  asked  the  direction 
of  the  chancellor  as  to  the  mode  of  obtaining  a  state  of  the  case, 
to  be  used  on  the  argument  of  the  rule. 

The  following  order  was  made  by  the  court :  — 

"  The  postea  upon  the  feigned  issue  formed  in  this  cause,  hav- 
ing been  returned  to  this  court  from  the  last  Mercer  circuit ;  and 
it  being  alleged  on  the  part  of  the  Trenton  Banking  company 


494  CASES  IK  CHANCERY, 

Trenton  Blinking  Co.  v.  Rossell,  trustee,  &c. 

that  the  judge  before  whom  the  trial  at  said  circuit  was  had, 
gave  an  erroneous  charge  to  the  jury,  and  that  the  said  the  Tren- 
ton Banking  company  were  aggrieved  thereby,  and  that  a  new 
trial  ought  to  be  granted ;  and  the  chancellor  being  of  opinion 
that  a  state  of  the  case  and  history  of  the  trial  at  said  circuit 
should  be  prepared  and  submitted  to  this  court,  to  the  end  that 
the  motion  for  a  new  trial  may  be  duly  considered  and  settled ; 
it  is  thereupon,  on  this  fifteenth  day  of  July,  in  the  year  of  our 
Lord  eighteen  hundred  and  forty-one,  ordered  and  directed  by 
the  chancellor,  that  the  solicitor  of  the  Trenton  Banking  com- 
pany do,  within  thirty  days,  prepare  a  state  of  the  case  and  his- 
tory of  the  said  trial  at  said  circuit,  and  serve  a  copy  thereof 
upon  the  solicitor  of  Zachariah  Rossell,  trustee,  &c.,  who  shall, 
within  twenty  days  after  such  service,  state  in  writing  his  objec- 
tions thereto,  or  otherwise  shall  be  deemed  to  agree  thereto ;  and 
in  case  said  solicitors  cannot  agree  upon  such  state  of  the  case,  the 
points  in  difference  between  them  shall  be  settled  by  the  judge 
before  whom  such  feigned  issue  was  tried  at  the  said  circuit ;  and 
said  state  of  the  case,  when  so  agreed  upon  or  settled,  shall  be 
filed  in  this  court  among  the  papers  in  this  cause.  And  it  is  fur- 
ther ordered,  that  the  argument  of  the  motion  for  a  new  trial  do 
come  on  at  the  next  term,  upon  the  merits  of  the  question,  and 
without  any  rule  to  show  cause  for  that  purpose.' 

CITED  in  Black  T.  Lamb,  1  Leas.  1 14. 


CASES 

ADJUDGED  Qi 

THE   COURT  OF  CHANGER  Y 

OF  THE  STATE  OF  NEW- JERSEY. 
OCTOBEB    TERM.    1841. 


JOHN  PENN  and  others  v.  WILLIAM  CEAIO  and  others. 

It  is  the  duty  of  a  sheriff  to  sell  property  plainly  divisible  in  separate  parcels 
Yet  where  a  sale  is  made  in  violation  of  this  rale,  if  made  with  the  appro, 
bation  of  the  owner  of  the  property,  and  if  thirteen  years  have  elapsed  since 
the  sale,  and  the  property  has  descended  to  the  heirs  of  the  purchaser,  the 
court  will  not  for  this  cause  alone  disturb  the  title. 


This  bill  was  filed  to  set  aside  a  sheriff's  sale.  The  grounds 
relied  upon  to  invalidate  the  sale,  appear  in  the  opinion  of  the 
chancellor.  The  cause  was  heard  upon  the  pleadings  and 
proofs. 


for  complainants. 
Hamilton,  for  defendants. 

THE  CnANCELLOB.  This  bill  seeks  to  set  asido  two  sales  of 
the  same  property  made  by  two  sheriffs  of  the  county  of  Warren. 
The  property  in  both  instances  was  purchased  bv  the  same  per- 


496  CASES  IN  CHANCERY, 

Penn  et  al.  v.  Craig  et  al. 

son,  and  the  object  of  the  suit  must  fail  unless  both  sales  aro 
declared  to  be  void. 

William  Craig,  one  of  the  defendants,  was  the  owner  of  seve- 
ral distinct  parcels  of  property  in  the  county  of  "Warren,  and  on 
the  25th  of  September,  1821,  mortgaged  a  part  of  them  to 
James  Bryan,  to  secure  one  thousand  dollars.  This  was  the  first 
incumbrance.  Afterwards,  and  on  the  19th  of  August,  1826, 
being  indebted  to  the  complainants,  he  confessed  to  them  a  judg- 
ment in  the  supreme  court  of  this  state  for  four  thousand  nine 
hundred  and  twenty-four  dollars,  besides  costs.  Upon  this  judg- 
ment &  fieri  facias  de  bonis  et  terrisw&s  issued  to  the  sheriff  of 
Warren,  returnable  to  the  term  of  September  after  the  date  of 
such  judgment,  to  raise  one  thousand  nine  hundred  and  eighty- 
five  dollars  and  sixty  cents,  with  interest  from  the  23d  of  April, 
1825,  fhat  being  the  real  sum  due,  with  five  dollars  costs.  Un- 
der this  execution  the  sheriff  levied  on  the  same  property  con- 
tained in  the  Bryan  mortgage,  and  upon  another  farm  at  the 
Oxford  meeting-house,  already  encumbered  to  its  value.  At  a 
later  day,  and  on  the  5th  of  April,  1828,  Bryan  obtained  a  de- 
cree in  this  court  for  a  sale  of  the  premises  contained  in  his 
mortgage,  to  raise  eleven  hundred  and  six  dollars  and  twen- 
ty-seven cents,  besides  costs,  and  placed  the  execution  also 
in  the  hands  of  the  sheriff  of  Warren.  The  execution  issued 
upon  the  decree  in  this  court,  though  later  than  the  one  issued  at 
law  on  the  complainant's  judgment,  being  upon  a  mortgage 
made  prior  to  the  judgment,  took  precedence,  and  was  entitled 
to  be  first  paid  from  the  sale  of  the  property.  The  sale  on  the 
execution  out  of  this  court  was  made  on  the  1st  of  August,  1828, 
by  sheriff  Shipman,  and  John  Craig,  the  father  of  William,  the 
mortgagor,  became  the  purchaser  of  all  the  property  contained 
in  the  mortgage,  for  twelve  hundred  and  fifty  dollars.  On  the 
2d  of  May,  1829,  sheriff  Mushback  sold  the  same  property  over 
again,  on  the  execution  issued  by  the  complainants  on  their 
judgment  at  law,  and  John  Craig  again  became  the  purchaser 
for  the  nominal  sum  of  seven  dollars.  Both  these  sales  are  at- 
tempted to  be  impeached  by  the  complainant,  as  fraudulent  and 


OCTOBER  TERM,  1841.  497 

Penn  et  aU  v.  Craig  et  al. 

irregular,  and  constitute  the  subjects  for  inquiry  and  decision  in 
this  cause.  The  sales  are  distinct  and  independent  in  their 
character,  were  made  at  different  times,  under  different  execu- 
tions, and  by  different  sheriffs,  and  must  of  course  receive  sepa- 
rate consideration. 

And  first,  as  to  the  sale  by  sheriff  Shipman,  under  the  execu 
tion  from  this  court.     Among  all  the  reasons  urged  against  thi. 
sale,  there  is  only  one  which  appears  to  me  to  have  much  weigh; 
in  it,  and  that  is,  that  the  sheriff  sold  the  property  in  lump,  when 
lie  should  have  sold  it  in  parcels.     The  property  consisted  of  a 
tavern-bouse  and  two  lots  in  Belvidere,  and  a  farm  within  a  mile 
or  two  of  that  pli  ce  of  ninety  or  one  hundred  acres.      The  two  • 
lots  in  Belvidere,  though  the  evidence  is  not  very  clear,  I  be- 
.  licve  lay  together,  and  might  with  propriety  be  embraced  in  the 
same  sale.      It  is  selling  the  tavern-house  and  the  farm  at  the 
same  time,  that  constitutes  the  objection.  The  duty  of  a  sheriff 
to  sell  property  capable  of  a  natural  division  in  separate  parcels 
is  so  obvious,  that  we  should  suppose  no  officer  desirous  of  dis- 
charging his  trust  faithfully  would  ever  fail  to  do  so,  and  yet  it  is 
a  very  frequent  ground  of  complaint.     If  plainly  devisable,  the 
property  should  be  sold  in  parcels.      This  is  the  view  taken  in 
tlie  case  of  Merwin  et  al.  v.  Smith  et  al.  in  this  court,  and  it 
will  be  found  to  be  in  accordance  with  the  cases  of    Woods  v., 
Monett,  in  1   Johns.  Ch.  502,   and  of  Tiernan  v.  Wilson^  in. 
6  Johns.  Ch.  411.  So  decidedly  correct  is  this  course  considered 
in  the  state  of  New- York,  that  the  provision  is  incorporated  in 
the  revised  statutes,  that  real  estate  shall  be  sold  in  separate  par- 
cels if  required  by  the  owner :  4  Kenfs  Com.  431.      The  great 
object  in  regulating  judicial  sales,  is  to  make  the  property  brinr; 
the  largest  amount  This  is  desirable  for  all  the  parties,  as  well 
for  the  plaintiff  as  the  defendant.      To  sell  at  one  time,  and  iii 
one  parcel,  different  parcels  of  property  which  have  no  connexion 
with  each  other,  is  to  do  away  with  all  competition  and  strife  a; 
the  sale,  and  to  afford  the  most  favorable  opportunities  to  specn 
late  on  the  misfortunes  of  the  defendant  in  execution.      Tin 
practice,  therefore,  of  selling  in  one  parcel,  property  which  L 
64 


493  CASES  IK  CHANCERY, 


Penn  et  al.  v.  Craij?  et  al. 


separate,  should  be  frowned  upon  and  discountenanced  as  unjust 
and  oppressire. 

But  while  I  state  this  as  a  general  rule,  and  would  desire  that 
it  might  be  adopted  by  sheriffs  generally,  it  by  no  means  follows 
that  every  sale  not  thus  made  will  be  set  aside.  There  may  be 
sound  reasons  for  selling  property  together ;  one  part  may  not  be 
capable  of  advantageous  use  without  the  other ;  the  defendant 
may  himself  desire  to  have  his  property  thus  sold  ;  or  the  time 
since  the  sale  was  made  may  have  so  long  passed  by,  as  to  ren- 
der it  in  the  highest  decree  indiscreet  to  disturb  it.  In  the  present 
case  the  property  was  entirely  separate,  and  I  think  the  sheriff 
ihould  have  sold  the,  tavern-house  and  farm  in  distinct  parcels. 
Had  application  been  promptly  made  to  the  court,  it  is  most  pro- 
bable a  resale  would  have  been  ordered.  Now,  thirteen  years 
have  passed  since  the  sale  was  made,  the  purchaser  is  dead,  the 
land  has  descended  to  his  heirs,  been  divided  among  them  by 
commissioners,  and  in  one  intsance,  if  not  more,  the  share  of 
one  of  the  heirs  has  been  sold.  It  is  true  that  the  filing  of  the 
bill  is  notice  to  all  parties,  and  may  therefore,  in  a  technical  sense, 
remove  this  difficulty,  and  yet  unless  other  cause  existed  the  re- 
luctance would  be  very  great  to  interfere  for  this  alone.  This 
property  had  been  put  up  at  a  previous  day,  both  in  parcels  and 
together,  and  no  bid  could  be  got,  and  the  property  was  sold  to- 
gether by  the  consent  and  desire  of  the  owner.  The  sheriff  de- 
clares that  the  sale  was  fairly  made,  and  there  is  no  evidence 
that  the  purchaser  exercised  any  control  over  the  course  of  the 
sale.  The  purchaser,  it  is  true,  was  the  father  of  the  defendant 
in  execution,  but  there  is  nothing  in  that  fact,  per  se,  to  affect 
the  sale.  He  may  buy,  as  well  as  a  stranger,  and  at  a  public 
open  sale  I  see  no  impropriety  in  his  doing  so.  It  would  be  a 
harsh  rule  that  would  shut  out  a  father  from  purchasing  the  farm 
on  which  his  son  resided,  and  letting  the  family  remain  upon  it. 
Every  thing  depends  upon  the  lona  fides  of  the  transaction. 
That  the  father  furnished  the  money  and  paid  for  his  purchase 
f /om  his  own  means,  there  can  be  no  doubt.  A  part  of  it  was 
money  he  received  as  a  pension  for  military  services,  and  a  part 


OCTOBER  TERM,  1841.  499 

Penn  et  si.  v.  Craig  t t  nl.  ; 

on  his  own  note  discounted  at  the  Easton  Bank.  The  president 
of  that  Bank  declares,  that  lie  paid  about  the  time  of  the  pur- 
chase this  money  to  the  purchaser,  and  the  amount  was  sufficient 
for  that  purpose.  The  deed  was  made  to  the  father,  and  the  pro- 
perty, at  his  death,  descended  to  his  heirs.  There  is  reason,  from 
the  evidence,  to  believe  that  William  Craig  expected  his  father 
would  have  given  him  the  property  again,  upon  being  paid  what 
he  advanced  for  it,  but  there  is  no  evidence  that  the  father  ever 
promised  to  do  so,  and  the  result  has  shown  that  he  suffered  it 
to  go  to  his  heirs  generally. 

That  the  property  sold  at  a  low  rate  there  is  no  doubt,  and 
possibly,  had  the  complainants  been  represented  as  they  should 
have  been  at  the  sale,  they  might  have  saved  their  debts  in  part, 
if  not  in  whole ;  and  yet  it  is  matter  of  great  doubt  whether,  cir- 
cumstanced as  things  were  in  the  absence  of  the  complainants, 
the  property  would  have  brought  any  more  if  sold  in  parcels. 
One  very  respectable  witness  has  expressed  his  opinion,  that  the 
property  brought  all  that  it  would  have  brought  at  that  time  at 
any  sale.  However  this  may  be,  there  is  nothing  in  the  price  at 
which  the  property  sold  to  justify  my  interference  on  that 
ground. 

The  sale  was  first  advertised  at  Belvidere,  and  from  there  ad- 
journed by  the  sheriff  to  Oxford,  and  it  is  objected  that  this  was 
illegal :  that  the  power  given  the  sheriff  to  adjourn  a  sale  applies 
only  to  the  time,  and  not  to  the  place  of  sale.  No  such  distinc- 
tion is  taken  in  the  statute,  and  I  confess  I  can  see  no  good  rea- 
son why,  if  he  may  change  the  time,  he  may  not  change  the 
place  of  sale  also.  The  sheriff  has  a  discretion  on  this  subject, 
and  should  be  left  free  to  exercise  it  There  may  arise  abundant 
cause  for  making  a  change.  In  this  case  the  sheriff  had  failed 
to  get  a  bid  at  Belvidere,  and  fearing  "William  Craig  was  exerting 
there  an  undue  influence,  he  went  to  Oxford.  This  was  a  public 
place,  and  where  sales  had  frequently  been  made.  He  advertised 
the  adjournment  in  the  papers,  and  I  cannot  say  the  proceed- 
ing was  either  contrary  to  law,  or  an  unwise  exercise  of  dis- 
cretion. 


500  CASES  IK  CHALTCEKY, 

Penn  et  el.  v.  Craig  et  al. 

While,  therefore,  I  adhere  to  the  opinion  that  a  sheriff  should 
sell  in  parcels  property  plainly  divisible,  and  should  have  so  done 
in  this  case,  yet  as  this  is  the  only  ground  for  impeaching  the 
sale,  as  it  was  done  with  the  approbation  of  the  owner  of  the 
property,  and  as  so  long  a  time  has  now  elapsed,  and  the  pro- 
perty has  descended  to  the  heirs  of  the  purchaser,  I  deem  it 
unwise  to  disturb  this  title.  I  fear  I  should  be  doing  greater  in- 
justice by  such  a  course,  than  by  allowing  the  sale  to  remain. 
The  value  of  the  property  has  increased,  from  the  evidence  of 
Mr.  Maekey,  very  considerably,  and  it  may  possibly  have  un- 
dergone more  or  less  changes  in  other  respects. 

With  the  second  sale,  made  on  the  execution  at  law  by  sheriff 
Hushback,  I  have  little  or  no  difficulty.  It  was  made  under  the 
execution  issued  by  the  complainants  themselves  on  their  judg- 
ment, and  the  whole  proceeding  was  under  their  own  control. 
The  sale  appears  to  have  been  fairly  made,  and  upon  the  proper 
and  legal  notice.  The  property  was  sold  in  parcels,  and  I  do  net 
find  any  irregularity  whatever  stated  or  proved.  The  sheriff 
stated  that  ho  sold  by  order  of  the  plaintiffs'  attorney,  and  show- 
ed a  letter  from  him  as  his  authority.  The  plaintiffs'  attorney 
declares  his  conviction  that  he  never  could  have  given  instruc- 
tions for  selling  this  property  over  again,  but  frankly  avows  that 
lie  does  not  remember  the  directions  he  gave  the  sheriff.  From 
the  circumstances,  I  am  strongly  inclined  to  think  that  the  sheriff 
lias  not  carefully  looked  into  his  instructions,  for  it  was  the  poli- 
cy of  the  plaintiffs  not  to  sell  the  property  a  second  time,  and  it 
is  reasonable  to  suppose  the  plaintiffs'  attorney  so  acted.  But 
the  sale  did  take  place,  made  by  a  sheriff  under  a  valid  execu- 
tion, and  how  can  it  be  disturbed  ?  He  declared  at  the  time  that 
he  sold  by  orders  from  the  plaintiffs'  attorney,  and  the  attorney 
cannot  himself  Bay  what  the  instructions  were  that  he  gave. 
Too  much  time  has  rolled  over  this  transaction  to  trust  to  mere 
recollections.  Suppose  the  complainants  had  attended  this  sale 
and  bought,  they  must  have  been  entitled  to  all  the  right  to  the 
property  remaining  in  William  Craig.  The  caso  is  not  varied 


OCTOBER  TERM,  1841.  501 

Penn  ct  al.  v.  Craig  et  al. 

by  John  Craig  becoming  the  purchaser.  He  had  as  much  right 
to  take  the  title  as  a  stranger. 

Upon  the  whole  case,  I  am  of  opinion  that  the  complainants 
are  not  entitled  to  a  decree  in  their  favor,  and  that  the  bill  must 
be  dismissed,  but  without  costs.  "William  Craig  is  the  only  de- 
fendant who  has  answered,  and  I  do  not  think  he  should  recover 
costs  at  the  hands  of  these  complainants. 

Bill  dismissed  without  costs. 


JOHN  HOAGLAND  v.  NATHAN  HoAGLAND  and  others. 

Where  a  bill  is  filed  for  relief  against  a  sheriff's  sale  of  the  complainant's  pro- 
perty, on  the  ground  that  the  purchaser  was  the  agent  of  the  defendant  ia 
execution,  and  purchased  as  trustee  for  him;  it  is  no  objection  to  granting 
relief  that  the  trust  was  not  in  writing. 

Mere  inadequacy  of  price  affords  no  presumption  that  the  property  was  pur- 
chased in  trust  for  the  owner. 

Tins  bill  was  filed  for  relief  against  a  sale  of  the  real  estate 
of  the  complainant,  made  by  the  sheriff  of  the  county  of  War- 
ren, by  virtue  of  an  execution  issued  out  of  a  court  of  common 
law.  The  bill,  among  other  things,  charged,  that  the  defend- 
ant, Nathan  Iloagland,  was  the  brother  of  the  complainant ;  that 
he  attended  the  sale  as  his  agent,  and  purchased  the  property  in 
trust  for  the  complainant,  to  be  reconveyed  to  him  whenever  the 
defendant  should  be  reimbursed  the  expenses  incurred  and  mo- 
ney advanced  for  the  purchase.  The  defendant's  answer  denied 
all  the  material  allegations  of  the  bill.  Evidence  was  taken  by 
both  parties,  and  the  cause  was  heard  upon  the  pleadings  and 
proofs. 

P.  D.  Vroom,  for  complainant 
JL  W.  Greeny  for  defendant 


502  CASES  IN  CHANCERY, 

Hoagland  v.  Iloagland. 

Cases  cited  by  the  counsel  of  the  complainant.  3  Wendell, 
626;  2  Eden,  286;  15  Vesey,  280;  2  Sch.  and  Lef.  492; 
1  Cox,  112;  13  Vesey,  134;  1  Fonb.  Eg.  124;  Jeremy^  Eg. 
393  ;  3  Cbtoot,  537. 

THE  CHANCELLOB.  This  case  covers  transactions  as  far 
back  as  the  years  1816, 1817,  and  1818.  The  complainant  at 
that  time  was  possessed  of  considerable  real  estate,  which  he  de- 
rived in  part  by  devise  from  his  father,  and  in  part  by  purchase 
from  others,  and  some  personal  property.  He  was  then  a  young 
man,  and  dissipated  in  habits.  He  became  in  debt,  was  reckless 
in  the  management  of  his  affairs,  and  executions  pressed  him, 
until  in  a  very  short  time  (as  was  to  be  expected  from  his  course) 
his  property  was  gone,  and  he  was  left  to  be  supported  by  the 
charity  of  his  friends.  The  brothers,  Nathan  and  James,  who 
seem  to  have  been  steady  men,  not  willing  to  see  the  complain- 
ant's property  go  out  of  the  family  and  be  sacrificed  at  auction, 
conferred  together  about  buying  it  in  jointly,  and  as  to  the  home- 
stead did  at  one  time  agree  to  do  so.  Some  difficulty,  however, 
arose  to  their  joint  action,  and  Nathan,  the  defendant,  finally, 
became  the  purchaser  of  the  greater  part,  if  not  all,  of  the  com- 
plainant's estate.  These  various  purchases  by  Nathan,  are  now 
attempted  to  be  called  in  question,  as  having  been  made  at  the 
time  on  account  of  the  complainant,  and  for  his  use  and  benefit, 
and  the  complainant  claims  to  have  his  property  restored  to  him 
again  upon  settling  Nathan's  account  and  paying  him  what  he 
advanced,  with  his  expenses  and  commissions  for  his  trouble. 

There  are  no  questions  involved  in  this  cause  between  the  two 
brothers  who  proposed  to  step  in  and  buy  the  complainant's  pro- 
perty. If  they  have  any  ground  of  controversy,  it  cannot  be 
settled  here ;  this  cause  can  only  dispose  of  the  case  as  between 
the  complainant  and  Nathan,  and  not  as  between  Nathan  and 
James.  Whatever,  therefore,  might  have  been  the  good  faith  of 
the  agreement  at  the  time  the  homestead  farm  was  sold,  between 
Nathan  and  James,  if  the  complainant  was  not  to  derive  any 
advantage  from  it,  he  cannot  complain. 


OCTOBER  TERM,  1841.  503 

Hoaglaml  v.  Hongland, 

As  the  complainant's  property  was  disposed  of  at  different 
times,  it  will  be  necessary  to  examine  the  circumstances  attend- 
ing the  disposition  of  each  parcel  separately,  with  a  view  to  show 
the  course  pursued  by  Nathan  throughout  The  bill  states  how 
the  personal  property  was  dispatched.  The  bill  does  indeed  con- 
tain grievous  accusations  against  the  brother,  and  if  true  would 
call  loudly  for  interference  in  behalf  of  the  complainant ;  but  the 
answer  meets  the  charges  fully  in  almost  every  instance,  at  all 
events  so  far  as  the  matter  of  equity  is  concerned.  The  cause 
must,  therefore,  be  decided  by  the  evidence,  which  is  voluminous 
and  scattered  over  a  wide  range  of  unimportant,  and  I  may  say. 
trivial  matter. 

I  propose  to  take  up  the  charges  in  the  order  in  which  they 
are  stated  in  the  bilL  * 

L  The  first  specific  allegation  is,  that  Nathan  was  indebted 
to  the  complainant,  for  cash  lent,  to  the  amount  of  sixty-six 
dollars,  and  gave  him  his  duebill  for  it  payable  in  ten  days.     Of 
this  he  paid  complainant  twelve  dollars  and  fifty  cents,  and  no 
more.     That  complainant,  being  indebted  to  onCjRobbins,  gave 
him  his  note  for  forty  dollars,  and  deposited  with  him  as  collateral 
security  the  duebill  of  Nathan.     That  he  subsequently  paid  off 
the  debt  to  Robbing,  but  he  never  returned  Nathan's  duebill. . 
That  the  complainant  subsequently  became  security  for  Robbing, 
to  one  Coursen,  for  about  forty  dollars,  who  obtained  judgment 
jointly  against  the  complainant  and  Robbins.     Upon  this  judg- 
ment execution  was  placed  in  the  hands  of  a  constable,  who 
levied  upon  a  horse,  the  property  of  Robbins,  then  in  Nathan's 
possession,  and  that  Nathan  fraudulently  suffered  Robbins  to 
take  hid  horse  away  upon  his  giving  up  to  Nathan  his  said  due- 
bill  for  sixty-six  dollars.    That  Robbins  ran  away  to  Canada  and 
left  the  complainant  to  satisfy  the  execution,  when  Nathan  set  up 
fraudulently  that  he  had  paid  the  note  off,  and  produced  it  on ' 
trial  as  a  discharged  debt.     The  answer  of  Nathan  gives  quite ! 
a  different  version  to  this  story.    He  admits  giving  the  duebill  to 
the  complainant,  and  while  in  complainant's  hands  ho  paid  upon; 
it  twelve  dollars  and  tifty  cents ;  but  he  says,  afterwards,  and 


504:  CASES  IN  CHANCERY, 

Hoagland  v.  Hoagland. 

while  it  was  in  the  Lands  of  Bobbins,  h'e  paid  by  complainant's 
consent  to  Kbbbins  upon  it  tlie  f urthersum  of  twenty-four  dollars 
and  sixtynseven  cents,  and  being  pressed  by  Bobbins  for  the 
balance,  he  refused  so  pay  it  because  he  had  a  book  account 
against  the  complainant,  which  was  a  just  offset,  for  more  than 
sufficient  to  pay  what  was  due  upon  the  bill,  and  that  ho  and 
Bobbins  left  it  to  a  mutual  friend  to  say  what  should  be  done 
about  it,  an8  that  friend  decided  that  Nathan  should  give  his 
brother  John  a  credit  for  the  note  on  his  account  against  him, 
which  was  so  done,  and  the  note  given  up  to  Nathan.  The 
answer  denies  the  whole  story  about  the  horse,  and  his  suffering 
Bobbins  by  collusion  to  take  the  same  away.  There  is  no  proof 
adduced  on  either  side  respecting  this  charge,  and  the  answer 
gives  to  my  mind  a  satisfactory  solution,  and  which  in  the  ab- 
sence of  proof  is  to  be  taken  as  true.  Besides,  it  appears  upon 
the  face  or  the  bill,  that  the  complainant  brought  a  suit  against 
Nathan  on  this  note,  and  had  a  trial,  and  judgment  was  given 
against  the  complainant.  This  case,  therefore,  has  been  long 
since  adjudicated  upon,  and  in  favor  of  Nathan,  and  should  be 
for  ever  at  rest*. 

2.  A  second  charge  is,  that  Nathan  conspired  with  constables 
who  had  executions  against  the  complainant,  to  sell  in  his  ab- 
sence, in  one  case  six  or  seven  hundred  dollars  worth  of  grain 
standing  in  shook  on  his  place,  and  which  Nathan  bought  in  for 
a  small  sum  of  money ;  at  another  time,  that  he  bought  wndcr 
like  circumstances,  a  bed  and  bedding,  and  desk  and  bookcase ; 
at  another  time,  a  cow  and  several  sheep ;  and  at  another,  seve- 
ral bushels  of  buckwheat.  These  cases  are  stated  as  oppressive 
proceedings  prompted  by  Nathan,  and  done  with  a  view  to  enable 
him  to  buy  in  complainant's  property  for  a  nominal  sum.  The 
answer  fully  denies  the  fraud  charged,  by  declaring  that  the  de- 
fendant knew  nothing  of  the  suits  until  the  constables  came  with 
the  executions;  that  lie  had  no  control  over  them,  and  gave  no 
direction  to  the  officers,  and  bought  without  any  collusion  with 
them  whatever.  The  complainant's  grain  is  represented  as  being 
in  a  bad  situation,  scattered  over  the  land,  and  much  of  it  grown 


OCTOBER  TERM,  1341.  50.1 

Hoaglaiid  v.  Ilonglanil. 

and  ruined,  owing  to  the  wretched  management  of  liis  fanu. 
[ndcpendeut  of  the  answer,  there  is  no  probability  that  this 
brother  would  have  acted  so  shameful  a  part  as  to  combine  with 
the  constables  to  press  him  in  this  way ;  it  is  far  more  likely 
that  the  constables  waited  until  their  patience  became  exhausted 
and  there  was  a  necessity  for  action.  The  answer,  at  all  events, 
denies  every  charge  of  combination  and  fraud,  and  the  defendant 
claims  to  have  purchased  openly  and  fairly.  There  is  no  proof 
on  this  point  either. 

These  matters,  therefore,  relating  to  the  personal  property,  do 
not  appear  to  be  at  all  sustained,  and  probably  were  introduced 
more  to  throw  a  shade  over  the  defendant's  conduct,  than  from 
any  expectation  at  this  day  of  disturbing  them.  The  great  ob- 
ject of  the  suit  concerns  the  real  estate,  and  to  that  we  must  next 
in  order  turn  our  attention. 

3.  The  complainant,  by  his  father's  will,  had  devised  to  him 
a  part  of  the  homestead  farm,  consisting  of  one  hundred  and 
eight  acres,  and  two  other  pieces  of  meadow,  one  of  twelve  and 
the  other  of  eight  acres.  This  farm  was  sold  by  Daniel  Swayze, 
esquire,  sheriff  of  the  county  of  Sussex,  on  an  execution  issued 
out  of  the  common  pleas  of  Sussex,  on  a  judgment  in  favor  of 
John  Addis,  and  purchased  by  the  defendant,  Nathan,  for  thir- 
teen hundred  and  twenty-eight  dollars.  The  sale  is  loudly  com- 
plained of,  arid  constitutes  the  great  object  of  this  suit.  The 
judgment  on  which  the  sale  was  made,  was  for  six  hundred  and 
twenty-seven  dollars  and  thirty  cents,  and  there  is  no  pretence 
that  Nathan  had  any  control  over  it,  or  any  agency  in  obtaining 
it.  The  debt  grew  out  of  a  farm  which  complainant  bought, 
and  to  which  purchase  his  pecuniary  difficulties  are  in  part  as- 
cribed. The  charge  is,  that  the  complainant,  being  thus  situ- 
ated, applied  to  his  brother  Nathan,  who  was  a  man  of  property 
and  standing,  to  help  him  ;  that  he  agreed  to  do  so,  and  was  to 
have  a  commission  for  his  services  ;  whereas,  availing  himself  of 
his  position,  he  became  the  purchaser  of  this  property  at  a  very 
low  price,  and  now  holds  on  and  claims  to  have  the  sole  and  ex- 
clusive right  to  it.  It  is  distinctly  charged  that  he  bought  only 
65 


,500 


Hoagland  v.  Hoagland. 


;  as  the  agent  of  the  complainant,  for  which  he  was  to  receive  pay, 
and  as  soon  as  he  was  repaid  the  money  he  advanced,  with  in- 
terest, which  was  then  expected  to  be  raised  from  the  sale  of  other 
property  belonging  to  the  complainant,  he  was  to  give  it  up  and 
reconvey  the  property  to  the  complainant.  This  is  the  account 
given  of  the  case  by  the  complainant. 

The  defendant,  Nathan,  in  his  answer,  states,  that  in  Feb- 
ruary, 1818,  while  this  execution  was  hanging  over  the  com- 
plainant's property,  he  and  his  brother  James  frequently  spoke 
of  complainant's  situation,  and  the  certainty  that  his  property 
would  go  into  the  hands  of  strangers  unless  they  interfered  about 
it :  that  Nathan  being  himself  in  debt,  wished  James  to  buy  it 
alone,  but  he  declined  doing  so,  and  it  was  finally  agreed  that 
they  should  buy  it  together.  In  the  mean  time  they  spoke  to 
complainant  about  it,  and  he  appeared  indifferent,  saying,  he 
could  get  the  money  before  the  day  of  sale.  The  defendant  says 
that  he  went  with  complainant  to  try  to  borrow  money  on  mort- 
gage, but  failed  in  borrowing  any,  and  the  complainant  keeping 
constantly  intoxicated,  it  resulted  in  his  and  his  brother  James 
attending  the  sale  and  purchasing  the  property.  Nathan  took 
the  title,  and  paid  the  money.  From  the  answer  it  would  not 
appear  that  any  arrangement  whatever  was  made  with  the  com- 
plainant, but  that  he  was  treated  as  a  man  going  to  destruction, 
and  the  only  question  between  the  other  brothers  was,  how  they 
should  manage  to  be  able  to  purchase.  Besides  the  natural  aver- 
sion to  let  the  homestead  go  out  of  the  family,  they  seemed  to 
have  had  a  dislike  to  Addis's  buying  it  and  settling  down  between 
them,  and  they  were  well  satisfied  that  if  one  of  them  did  not 
buy  it  Addis  would.  There  was  a  lease  at  the  time  on  the  farm 
to  one  Merrill,  and  a  few  days  after  the  sale,  according  to  the 
answer,  Nathan  and  the  complainant  met  the  lessee,  and  he  was 
directed  to  pay  the  rent  (by  the  consent  of  the  complainant)  to 
Nathan  as  the  purchaser  of  the  property.  The  answer  does  in- 
deed admit  that  after  the  sale,  as  an  inducement  for  complainant 
to  keep  sober,  Nathan  did  propose  to  him  a  plan  by  which  ho 
might  regain  his  property  ;  but  that  plan  was  never  carried  into 


OCTOBER  TERM,  1841.  507 

Hoagland  v.  Hoaglaml. 

effect,  or  even  the  writings  drawn.  There  is  a  wide  difference 
then,  between  the  bill  and  the  answer. 

James  Hoagland,  the  brother,  is  a  witness,  and  is  represented 
on  all  hands  as  a  respectable  man.  If  there  be  any  person  ac- 
quainted with  the  true  state  of  facts  in  this  case,  it  must  be  him. 
lie  was  originally  interested  in  the  purchase,  and  actually  paid 
part  of  the  money.  I  have  carefully  looked  into  his  evidence, 
which  has  been  fully  taken,  and  while  it  is  obvious  that  he 
blames  Nathan  for  not  acting  fairly  with  him  in  letting  him  in 
as  part  purchaser,  I  do  not  find  that  he  aids  the  complainant  in 
establishing  the  main  point  in  this  case,  to  wit,  that  Nathan 
bought  in  behalf  of  John.  As  Nathan  and  James  bought  joint- 
ly, he  ought  to  know  the  fact  if  it  were  so,  and  yet  he  distinctly 
says  as  to  himself,  that  he  never  saw  John  about  the  sale  at  all, 
and  does  not  know  that  John  knew  of  the  arrangement  between 
him  and  Nathan  for  purchasing  the  property.  The  conversation 
of  these  brothers  would  lead  me  to  believe  that  they  intended  to 
pay  all  John's  debts  and  to  provide  for  his  personal  wants,  but 
there  is  nothing  that  looks  like  his  having  the  property  again. 
Indeed,  from  his  course  of  life  and  conduct,  they  could  not  sup- 
pose he  would  ever  be  in  a  situation  to  pay  them  off  and  tako 
his  farm  again. 

It  would  be  dangerous  in  a  case  of  this  kind  to  proceed  upon 
mere  surmises.  The  sale  was  an  open,  public  one,  and  made 
wholly  independent  of  these  brothers,  and  if  their  purchase  was 
made  in  behalf  of  the  complainant  it  should  be  plainly  proved. 
Our  statute,  to  avoid  this  very  difficulty,  requires  all  trusts  re- 
lating to  real  estate  to  be  in  writing ;  and  while  this  case  may  be 
distinguished  from  that  of  a  mere  trust  by  showing  Nathan  to 
have  been  John's  agent  and  acting  for  him,  yet  there  is  great 
propriety  in  requiring  the  proof  to  be  explicit.  The  deed  was 
made  to  Nathan,  he  paid  the  money,  and  has  always  occupied 
the  place  as  his  own,  and  made  very  considerable  improvements 
upon  it.  It  is  now  more  than  twenty  years  since  the  sale  waa 
made.  James  says,  that  in  his  conversation  witli  Nathan,  as 
an  inducement  to  him  to  join  him  in  the  purchase,  he  said,  if 


503  CASES  IN  CHANCERY, 

Hoaglaiul  v.  Hoaglancl. 

hereafter  he  wished  to  have  the  whole  place,  he  would  deed  his 
half  to  him.  IIow  could  this  be  if  he  was  buying  on  John's 
account  \ 

The  sheriff,  Daniel  Swajze,  esquire,  is  examined,  but  the 
sale  was  made  by  his  deputy,  he  being  sick  at  the  time,  and  his 
deputy  is  dead.  He  knows  nothing,  therefore,  respecting  the 
sale,  except  a  conversation  which  he  had  a  few  years  afterwards 
in  which  Nathan  said  all  he  wanted  from  John  was  what  he 
was  out  of  pocket  for  him.  Such  evidence  may  tend  to  corro- 
borate a  case  already  proved,  but  can  never  of  itself  defeat  a 
title  to  property.  It  is  very  far  from  proving  the  terms  of  the 
purchase. 

John  Addis,  the  plaintiff  in  the  execution,  was  present  at  the 
sale.  The  feelings  of  this  witness  are  clearly  opposed  to  Nathan. 
He  says,  that  in  a  conversation  with  Nathan,  he  proposed  that 
John  should  sell  the  farm  he  bought  of  him,  and  the  Cook  place, 
and  take  rent  on  the  Merrill  lease,  which  -rould  pay  John's  debts 
and  save  him  the  homestead  farm  ;  an£  he  adds,  that  he  under- 
stood from  Nathan  that  this  was  the  bargain  between  him  and 
John.  But  this  proposal,  he  admits,  was  made  after  the  farm 
was  sold.  There  wa~s  much  conversation  about  what  course 
should  be  pursued  with  John's  affairs  and  with  him  at  different 
times,  but  it  would  seem  to  me  that  it  was  all  left  open  down  to 
the  time  of  the  sale  of  the  homestead  farm.  The  brothers  meant 
to  pay  his  debts,  which  it  is  alleged  was  done,  and  they  expect- 
ed, no  doubt,  to  be  burdened  with  his  maintainance.  From  Sam- 
nel  Shotwell's  evidence,  it  is  evident  that  Nathan  desired  to  be- 
friend John,  by  keeping  him  at  his  own  house,  offering  him  a 
rerun  there,  and  by  saying  and  doing  nothing  that  would  in  jure 
him.  When  he  said  in  John's  presence  that  the  property  was 
his,  he  only  wanted  to  save  it  for  him,  it  is  manifest  he  said  so 
to  qniet  his  apprehensions  and  prevent  any  outbreak,  for  the  wit- 
ne/s  adds,  John  was  not  satisfied  with  the  offers  made  to  main- 
tain him,  he  wanted  the  place. 

Without  going  over  all  the  evidence,  it  is  sufficient  to  say  here, 
that  there  are  several  witnesses  who  detail  loose  conversations 


OCTOBER  TEEM,  1841.  509 

Hoagland  v.  Hoagland. 

•with  Nathan,  going  to  show  that  he  designed  only  to  pay  him- 
self again  out  of  John's  property,  but  they  do  not  satisfactorily 
show  to  ray  mind  that  any  such  obligation  rested  upon  him. 
Nothing  is  more  uncertain  than  to  defeat  an  estate  in  lands  by 
this  kind  of  testimony.  There  has  been  considerable  feeling 
manifested  at  Nathan's  getting  this  property,  and  particularly 
with  his  course  towards  his  brother  James ;  but  from  a  careful 
review  of  it  all,  I  can  find  no  sufficient  foundation  upon  which 
to  rest  any  conviction  that  he  is  bound  to  surrender  it  again  to 
the  complainant.  lie  appears  to  have  paid  many  debts  volunta- 
rily, to  have  been  put  to  much  expense  and  trouble  on  John's 
account,  and  from  his  whole  course  it  is  manifest  that  he  never 
thought  of  being  liable  to  render  any  account  of  his  transactions, 
or  of  being  called  upon  to  give  up  the  property.  lie  kept  no  ac- 
count of  what  he  paid,  and  the  whole  character  of  the  improve- 
ments placed  on  the  farm  shows  that  he  considered  it  and  treated 
it  as  his  own.  That  the  farm  was  worth  more  than  it  sold  for, 
can  constitute  no  ground  for  relief.  It  generally  happens  that 
more  or  less  sacrifice  takes  place  in  these  sales  ;  they  are  forced 
upon  the  public,  and  it  is  natural  and  to  be  expected  that  pro- 
perty should  bring  less  than  its  value. 

4.  About  a  year  after  the  sale  of  the  homestead,  the  Addis 
farm  and  the  Cook  lot  were  sold  on  another  execution,  and  pur- 
chased also  by  Nathan  for  one  hundred  and  sixty  dollars.  There 
was  a  mortgage  on  the  Addis  farm  at  the  time  of  six  hundred 
dollars,  so  that  the  purchase  amounted  in.  fact  to  seven  hundred 
and  sixty  dollars.  Nathan,  in  his  answer,  denies  all  fraud  in 
the  transaction,  says  he  bought  very  reluctantly,  but  with  a  de- 
termination to  pay  all  John's  debts,  which  he  alleges  he  has  done, 
except  tavern  debts,  and  these  he  refuses  to  pay.  The  bill 
charges  Nathan  with  deceit,  in  promising  to  go  and  pay  tho 
money  for  John,  instead  of  which  he  went  and  bought  his  pro- 
perty. This  the  answer  also  meets,  by  declaring  that  Nathan 
told  complainant,  who  wanted  him  to  go  and  adjourn  tho  sale, 
that  if  he  went  he  would  go  unshackled  from  all  promises  to 
him.  The  answer  denies  that  there  ever  was  any  bargain  bo» 


510  CASES  IN  CHANCERY, 

Huaglaud  v.  Hoaglimd. 

tween  defendant  and  complainant  respecting  this  property,  but 
that  defendant  bought  as  any  other  person  would. 

James  Hoagland  does  indeed  say,  in  his  deposition,  that  Na- 
than promised  John  to  take  the  money  of  the  Cook  lot  and  pay 
off  the  claims  of  those  pressing  the  sale  of  the  Addis  farm,  but 
where  the  money  for  the  Cook  lot  was  to  come  from,  or  what 
were  the  circumstances  under  which  this  was  said,  does  not  ap- 
pear. This  may  all  have  been  said,  and  yet  the  sale  be  proper 
and  the  purchase  good.  The  day  for  the  sale  had  arrived,  and 
yet  it  is  manifest  that  he  had  no  money  from  the  sale  of  the 
Cook  lot.  About  the  time  he  got  the  sheriffs  deed  for  the  Addis 
farm,  Nathan  drew  up  and  signed  an  obligation  to  give  John  a 
home  at  his  house  as  long  as  he  lived,  and  placed  it  in  the  hands 
of  Joseph  Coriell,  esquire.  John  boarded  at  his  house  for  more 
than  two  years  at  one  time,  and  he  has  vouchers  of  debts  paid  for 
him  of  six  hundred  and  twenty-nine  dollars.  The  evidence  is 
entirely  too  loose  to  disturb  this  sale. 

This  property  has  since  been  sold  to  Stinson  by  Nathan,  and 
John  was  present  and  knew  of  the  whole  transaction.  While  the 
bargain  was  making,  and  until  it  was  concluded,  he  made  no  ob- 
jection nor  set  up  any  claim  whatever.  It  is  true  the  same  eve- 
ning, in  one  of  his  freaks,  he  made  a  noise  about  it ;  but  after 
what  had  passed  before,  no  person  appears  to  have  given  any 
weight  to  what  he  said. 

5.  Two  other  lots  were,  it  seems,  sold  by  the  Blairs  on  their 
execution,  and  purchased  by  them.  Afterwards  they  sold  these 
lots  at  private  sale  to  Nathan  for  the  full  amount  of  their  de- 
mands. There  was  nothing  fraudulent  or  unjust  in  this  transaction. 

I  notice  that  many  years,  after  the  complainant's  property  was 
thus  sold,  he  applied  for  and  took  the  benefit  of  the  insolvent 
laws  of  tins  state,  and  in  his  schedule  then  filed  he  declares  that 
he  has  no  real  estate  whatever. 

Without  meaning  to  say  that  Nathan  may  not,  by  his  pur- 
chases, have  acquired  property  which  would  call,  possibly,  fora 
more  liberal  provision  for  his  brother  under  the  circumstances  in 
which  lie  is  now  placed,  (and  yet  I  do  not  remember  that  he  ha? 


OCTOBER  TERM,  1841.  511 

Hoagland  v.  Hoagland. 

ever  denied  him  a  home  with  him  or  refused  to  assist  him,)  I  still 
thi:;K  mere  is  a  want  of  that  certainty  and  directness  in  the  proof 
that  will  justify  me  in  calling  him  to  account  or  disturbing  him 
In  the  enjoyment  of  his  property.  My  reluctance  to  interpose  is 
increased  by  the  lapse  of  time.  More  than  twenty  years  have 
passed  since  these  sales.  Many  persons  acquainted  with  the  cir- 
cumstances are  dead,  and  at  so  late  a  day  the  memory  of  thoso 
that  remain  must  necessarily  be  imperfect.  This  bill  was  filed 
in  1827,  and  although  the  answer  was  put  in  the  same  year,  the 
first  evidence  was  not  taken  until  1837,  ten  years  after. 

I  am  of  opinion,  therefore,,  that  the  complainant's  bill  should 
be  dismissed,  with  costs. 


The  TBENTON  BANKING  COMPANY  v.  Z.  ROSSELL,  Trustee 
of  ANN  E.  WOODRUFF. 

A  new  trial  of  an  issue  directed  by  this  court  will  not  be  granted,  merely  be- 
cause on  the  former  trial  the  judge  misdirected  the  jury,  if  upon  the  whole 
evidence  the  court  is  satisfied  that  the  verdict  is  right. 

THIS  cause  came  on  for  hearing,  in  pursuance  of  an  order  of 
the  court,  made  at  the  term  of  July  last,  upon  the  application  of 
the  complainants  to  set  aside  a  verdict,  and  to  grant  a  new  trial  of 
a  feigned  issue  ordered  by  this  court.  The  issme  was  tried  at  the 
Mercer  circuit,  in  June  term,  1841,  and  a  verdict  rendered  in  fa- 
vor of  the  defendant.  A  state  of  the  case  had  been  prepared, 
pursuant  to  the  order  of  the  court  at  the  last  term. 

Wilson  and  J.  S.  Green,  for  complainants.  It  is  apparent 
upon  the  state  of  the  case,  that  the  judge  who  tried  the  cause  at 
the  circuit  misdirected  the  jury,  and  that  the  verdict  was  render- 
ed in  consequence  of  such  misdirection.  The  jurors,  in  render- 
ing the  verdict,  expressly  declared,  that  they  found  their  verdict 
under  the  instructions  of  the  court  A  verdict  ought  never  to  f 


512  CASES  IN  CHANCERY, 

Trenton  banking  Co.  v.  Rossell.  trustee,  &c. 

be  maintained  upon  unsound  principles  publicly  pronounced : 
Thompson  v.  Burdsall,  1  Southard,  172 ;  Lippincott  v.  Souder^ 
3  Hoisted,  161. 

Wall  and  H.  W.  Green,  contra.  No  error  was  in  fact  com- 
mitted by  the  Judge  before  whom  the  issue  was  tried  at  the  cir- 
cuit. But  admitting  an  error  to  have  been  committed,  there  is  no 
ground  for  a  new  trial.  Applications  for  new  trials  of  feigned  is- 
sues ordered  by  a  court  of  equity,  are  governed  by  different  princi- 
ples from  those  which  prevail  on  similar  applications  in  a  court  of 
law.  The  object  of  a  feigned  issue  in  this  court  is  to  satisfy  the 
mind  of  the  equity  judge  upon  the  matters  of  fact,  and  the  object  is 
attained  when  he  is  satisfied  that  at  the  trial  justice  has  been  done. 
When  the  conscience  of  the  chancellor  is  satisfied,  no  new  trial 
will  be  granted,  no  matter  what  errors  in  point  of  law  may  have 
been  committed  on  the  trial.  Upon  this  principle,  new  trials  have 
been  refused  where  improper  evidence  was  admitted,  where  legal 
evidence  was  rejected,  and  where  the  charge  to  the  jury  was  erro- 
neous, the  chancellor  being  satisfied  that  the  verdict  was  right : 
Booth  v.  Blundell,  19  Vesey,  503  ;  Hampson  v.  Hampson, 
3  Vesey  and  B.  41 ;  Stace  v.  Ndblott,  2  Vesey,  sen.  553 ;  Bar- 
ker v  Ray,  2  Russell,  G3  ;  Mulock  v.  Mu^ocl',  1  Edwards,  14 ; 
Apthorp  v.  Comstock,  2  Paige,  48T-8. 

THE  CHANCELLOR.  Upon  looking  into  the  state  of  the  case 
I  am  satisfied  that  the  verdict,  upon  all  the  evidence,  is  right,  and 
in  accordance  with  the  facts  of  the  case.  This  being  my  convic- 
tion, 1  deem  it  entirely  unnecessary  to  examine  the  question  whe- 
ther any  such  misdirection  of  the  jury  was  in  fact  made  by  the 
judge  who  tried  the  cause  at  the  circuit,  as  is  insisted  on  by  the 
counsel  of  the  complainants.  The  object  of  a  feigned  issue  order- 
ed by  this  court,  is  to  satisfy  the  conscience  of  the  court  upon  a 
doubtful  or  disputed  fact.  That  end  being  attained,  the  object  of 
the  issue  is  accomplished,  and  it  is  a  well  settled  rule  that  under 
such  circumstances  a  new  trial  should  not  be  granted. 
,  Motion  denied. 


OASES 

ADJUDGED  IV 

THE  COURT  OF  CHANCERY 

OF  TUB  STATE  OF  NEW-JERSEY 


NOTE.     The  following  opinions  were  not  received  by  the  Reporter  in  time 
to  be  inserted  in  their  appropriate  places  in  the  volume. 


DELIVERED  JULY  TEBM,   1833. 


JOHN  OUTCALT  and  wife  v.  NICHOLAS  VAN  WINKLB 
and  others. 

Under  an  assignment  made  by  an  insolvent  debtor,  all  his  estate  passes,  wi'h- 
out  reference  to  the  manner  in  which  it  was  acquired.  Whatever  rights  he 
may  have  in  the  property  of  his  wife,  acquired  by  virtue  of  his  marriage, 
will  pass  to  the  assignee. 

It  seems  that  assignments  in  bankruptcy  or  by  operation  of  law  will  not  de- 
prive the  wife  of  her  right  of  survivorship,  nnless  some  act  is  done  by  the 
assignee  reducing  her  choses  in  action  into  possession. 

THE  bill  in  this  cause  was  tiled  by  John  Outcalt  and  Hannah 
his  wife,  on  the  13th  of  May,  1837,  to  establish  the  will  of 
Samuel  Van  Tine,  of  the  township  of  South  Amboy,  in  the 
county  of  Middlesex,  the  father  of  Mrs.  Outcalt,  one  of  the 
complainants.  The  will  bears  date  on  the  third  day  of  May, 
1795,  and  by  it  the  testator  gives  to  his  daughter  Hannah,  then 
unmanned,  a  portion  both  of  his  real  and  personal  estate.  The 
GC 


5M  CASES  IN  CHANCERY, 


Outcalt  and  wife  v.  Van  Winkle  et  al. 


bill  prays  that  the  will  may  be  established,  and  the  trusts  thereof 
performed  and  carried  into  execution  under  the  decree  of  the 
court,  and  that  the  rights  and  interests  of  the  complainants  under 
the  will  may  be  declared  and  secured :  that  an  account  may  bo 
taken,  and  that  the  residue  and  clear  surplus  may  be  ascer- 
tained and  secured  by  and  under  the  direction  of  the  court,  for 
the  benefit  of  the  complainants. 

The  defendants  pleaded  in  bar  an  assignment  made  by  the 
eaid  John  Outcalt,  on  the  sixth  day  of  August,  1835,  as  an 
insolvent  debtor,  under  the  act,  entitled, "  An  act  for  the  relief  of 
persons  imprisoned  for  debt,"  passed  the  18th  day  of  March, 
1T95. 

The  cause  was  submitted  without  argument,  upon  the  matters 
contained  in  the  plea. 

W.  Ilalsted,  for  complainants. 
Disborough  and  J.  W.  Scott,  for  defendants. 

THE  CHANCELLOE.  The  present  bill  is  filed  by  the  com- 
plainants for  the  purpose  of  establishing  the  will  of  Samuel  Yan 
Tine,  the  father  of  Mrs.  Outcalt,  one  of  the  complainants,  and 
for  securing  to  the  complainants  their  rights  under  the  same. 
The  will  bears  date  the  third  day  of  May,  1795,  before  the  mar- 
riage of  the  complainants,  and  all  its  provisions,  which  consist  of 
devises  of  certain  portions  of  land  and  pecuniary  legacies,  are 
made  of  course  to  the  testator's  daughter,  and  not  to  her  husband. 
To  this  bill  the  defendants  have  pleaded,  that  John  Outcalt,  the 
complainant,  on  the  6th  of  August,  1835,  was  discharged  as  an 
insolvent  debtor  under  the  act  of  this  state,  entitled,  "  An  act  for 
tho  relief  of  persons  imprisoned  for  debt,"  passed  the  18th  of 
March,  1795,  and  executed  an  assignment  to  one  Henry  II. 
Schanck  of  all  his  estate,  according  to  the  provisions  of  that  act, 
whereby  all  his  right  in  the  matters  sought  to  be  recovered  in  this 
action  passed  to  his  assignee.  The  case  is  submitted  without 
vgument. 


CASES  IN  CIIAXCERY,  515 


Outcalt  and  wife  r.  Vim  Winkle  et  al. 


The  only  question  made  by  the  plea  is,  whether  the  complain- 
ants'  rights  under  this  will  passed  by  the  assignment.  If  they 
did,  the  assignee  alone  is  the  proper  party  to  establish  and  secure 
thoco  rights.  Should  the  present  complainants  recover  when  the 
right  is  in  the  assignee,  it  could  not  protect  the  defendants  from 
a  cccond  recovery  against  them.  The  validity  of  the  plea  is 
therefore  important. 

The  object  of  the  act  under  which  this  assignment  is  made,  is 
to  discharge  a  debtor  from  imprisonment  upon  his  transferring 
for  the  use  of  his  creditors  all  his  property  of  every  kind  and  de- 
scription, real  and  personal,  with  certain  exceptions  which  arc 
named  in  the  act.  The  assignee,  as  to  the  property,  stands  in 
the  place  of  the  assignor.  The  words  in  the  assignment  arc, 
"  c!o  freely  and  absolutely  grant  and  assign  unto  Henry  IL 
Echanck,  all  my  real  and  personal  estate  whatsoever  and  wherc- 
cocvcr,  except  the  wearing  apparel,"  &c.  And  the  eighth  section 
of  the  act  declares  the  assignee  "  to  be  invested  with  as  ample 
title  to  all  lands,  goods,  debts  and  effects  whatsoever  so  assigned, 
.is  the  assignor  himself  or  herself  had."  By  the  ninth  section  full 
power  is  given  to  the  assignee  to  dispose  of  all  estate  so  assign- 
ed, to  execute  deeds  for  the  same,  and  to  recover  in  his  own 
name  every  thing  belonging  to  the  estate  of  the  debtor ;  and  by 
the  fourteenth  section  it  is  provided  that  no  suit  in  equity  shall 
be  commenced  by  any  assignee  without  the  consent  of  the  major 
part  of  the  creditors  in  value,  at  a  meeting  to  be  held  for  that 
purpose. 

From  the  terms  of  the  assignment  and  the  provisions  of  tlic 
act,  it  would  seem  that  no  language  could  be  more  comprchcn- 
dvc.  All  the  estate  of  the  assignor  passes  by  the  assignment, 
\vithout  any  reference  to  the  manner  in  which  that  estate  is  ao- 
quired.  Whatever  rights,  therefore,  he  may  have  in  the  property 
of  his  wife  acquired  by  virtue  of  the  marriage,  must  pass  to  the 
assignee.  It  would  present  an  extraordinary  case  if  an  insolvent 
debtor,  after  making  an  assignment,  could  bring  his  action  and 
recover  for  his  own  benefit  a  chose  in  action  belonging  to  his 
wife,  or  the  possession  of  binds  in  which  he  had  a  life  estate. 


510  CASES  IN  CIIANCEEY, 


Outca!t  and  \vifo  v.  Van  Wi_kle  et  al. 


This  subject  lias  been  frequently  considered,  and  so  far  as  it  ia 
necessary  to  go  to  settle  this  cause  there  can  be  no  difficulty.  "A 
general  assignment  in  bankruptcy  or  under  insolvent  laws,  pas- 
ses the  wife's  property  and  her  choses  in  action,  but  subject  to 
her  right  of  survivorship  ;  and  if  the  husband  dies  before  tho 
assignees  have  reduced  tho  property  into  possession  it  will  sur- 
vive to  the  wife,  for  the  assignees  possess  the  same  rights  as  tho 
husband  before  the  bankruptcy,  and  none  other."  Milford  v. 
3fitford,$  Vcsey,  87;  Jewson  v.  Mbulson,  2  AiJc.  JRep.420; 
Van  Epps  v  Van  Deusen,  4  Paige,  64  ;  2  Kenffs  Com.  137-8. 

There  does  not  seem  from  the  cases  to  have  been  any  difficul- 
ty as  to  the  assignment  transferring  the  wife's  property,  (which  is 
the  only  matter  involved  in  this  cause,)  but  only  how  far  the  as- 
signment would  bar  the  right  of  the  wife  by  survivorship.  That 
point  need  not  be  settled  here,  though  the  cases  are  now  pretty 
well  agreed,  and  it  would  seem  upon  good  grounds,  that  assign- 
ments in  bankruptcy  or  by  the  operation  of  law,  will  not  deprive 
tho  wife  of  her  rights  of  survivorship  unless  some  act  is  done  by 
the  assignee  reducing  her  choses  in  action  into  possession. 

The  plea  in  this  case  not  having  been  replied  to,  is  admitted 

to  be  true,  and  is,  in  my  judgment,  good.     If  any  claim  exists 

for  the  matters  stated  in  the  bill,  the  suit  must  be  by  the  assignee. 

The  complainants'  bill  must  therefore  be  dismissed,  with  costs. 

Bill  dismissed. 


DEMTBBKD    OCTOBER    TEBM,    1838. 

PEICB  v.   JoflN  II.   SMITH,  DAVID  SANDEBSOH 
and  others. 

\Vhore  a  Icnue  in  made  by  (he  mortgagor  subsequent  to  the  mortgage,  the  mhrt» 
gngee  ia  not  entitled  to  an  account  in  equity  against  the  tenant  for  the  rents. 

TIIK  bill  was  filed  for  the  foreclosure  of  a  mortgage  given  by 
John  II.  Smith  and  wife  to  the  complainant,  bearing  date  on  the 


CASES  IN  CHANCERY,  617 


Price  v.  Smith  et  ul. 


first  day  of  March,  1836,  to  secure  the  payment  of  sixteen  thou- 
sand dollars.  It  charges,  that  after  the  execution  of  the  mort- 
gage, the  mortgagor,  on  or  about  the  26th  day  of  October,  183G, 
by  demise  in  writing  leased  the  mortgaged  premises  to  David 
Sanderson  for  the  term  of  two  years  :  that  Sanderson  underlet 
the  said  premises  to  one  Phebe  Meeker,  who  is  now  in  the  actual 
occupation  of  the  same.  That  on  the  27th  of  March,  1837,  the 
mortgagor  and  his  wife  conveyed  the  equity  of  redemption  in  the 
said  mortgaged  premises  to  Elias  Coriell,  and  assigned  to  him  all 
his  interest  in  the  lease  to  David  Sanderson.  That  on  the  24th  of 
Muy,  1837,  Elias  Coriell  conveyed  the  equity  of  redemption  in 
the  baid  mortgaged  premises  to  Anna  Coriell,  and  assigned  to 
her  all  his  interest  in  the  lease  to  Sanderson,  who  now  holds  the 
same  and  has  received  from  the  said  Sanderson  all  the  rent  accrn* 
ed  upon  the  lease  since  the  assignment  thereof  to  her.  The  bill,  in 
:wldition  to  the  usual  prayer  for  foreclosure,  prays  that  the  said 
Anna  Coriell,  David  Sanderson  and  Phebe  Meeker,  may  be  de- 
creed to  account  and  pay  over  to  the  complainant  the  rents  and 
profits  accruing  from  the  said  mortgaged  premises,  to  be  applicJ 
towards  the  payment  of  the  moneys  due  on  the  complainant's 
mortgage,  and  that  each  of  them  be  enjoined  and  restrained  from 
receiving  or  paying  over  the  said  rents  and  profits,  or  any  part 
thereof,  to  any  other  person  or  for  any  other  purpose. 

Upon  filing  the  bill,  an  injunction  issued  by  order  of  the  chan- 
cellor, to  restrain  the  payment  of  the  rents  which  should  accrue 
after  filing  the  bill  to,  or  receiving  payment  thereof  by,  any 
other  person  than  the  complainant.  David  Sanderson,  one  of  the 
defendants,  filed  a  general  demurrer  to  the  bill  The  cause  \vas 
set  down  for  hearing  upon  the  demurrer. 

F.  B.  Chetwood  and  /  II.  Williamson,  for  complainant. 
./?.  WiHiaTMon  and  S.  Scudder,  for  defendant. 

THE  CHANCELLOR.  A  single  question  is  presented  by  thii 
demurrer,  r.nd  that  is,  whether  a  mortgagee  can  in  this  court 


518  CASES  IN  CHANCERY, 

Price  v.  S.aith  ct  al. 

claim  of  a  tenant  of  tlie  mortgagor,  upon  a  lease  made  subse- 
quent to  the  mortgage,  the  rent,  after  notice  given  of  thecxist- 
"ence  of  the  mortgage  and  demand  of  payment.  The  bill  charges, 
fliat  John  II.  Smith,  the  mortgagor,  after  the  execution  of  the 
mortgage,  leased  the  same  premises  to  David  Sanderson,  and 
that  the  complainant  has  applied  to  him  to  pay  him  the  rent  to- 
wards satisfying  the  mortgage.  The  bill  prays  an  account 
against  Sanderson  for  the  rent,  and  that  he  may  be  decreed  to 
pay  over  the  same  in  liquidation  of  complainant's  debt.  To  this 
part  of  the  bill  Sanderson  has  filed  a  general  demurrer,  which 
brings  the  question  up  fairly  for  decision. 

No  principle  is  better  established  in  equity  than  that  until  a 
foreclosure,  the  mortgage  is  a  mere  security  for  the  debt,  a  chat- 
tel interest,  and  the  mortgagor  the  owner  of  the  fee.  In  case  of 
the  mortgagor's  death,  the  lands  descend  to  his  heirs.  On  the 
deatli  of  the  mortgagee,  his  personal  representatives  are  the  pro- 
per parties  on  a  bill  filed  to  foreclose  the  same,  and  the  money, 
when  collected,  goes  into  his  personal  estate.  As  between  the 
mortgagor  and  the  mortgagee  it  is  equally  well  settled,  that  the 
mortgagor  cannot  be  made  to  account  for  the  rents  and  profits. 
This  being  so  well  established  as  not  to  be  even  controverted  on 
the  argument,  it  would  seem  strange  that  in  any  case  the  tenant 
of  the  mortgagor  should  be  liable  to  account.  If  the  mortgagor 
is  the  owner  of  the  fee  and  may  lease  the  premises,  and  cannot 
himself  be  made  answerable  for  the  rents  while  ho  remains  in 
possession,  why  should  his  tenant? 

Could  this  mortgagee  recaver  t!i3  rent  of  the  tenant  at  law  ? 
tn  the  case  of  Bonders  v.  YansycHe  and  Garrison^  Hoisted, 
313,  the  supreme  court  of  this  state  decided  that  he  could  not. 
There  certainly  is  no  privity  either  of  contract  or  estate  between 
the  mortgagee  and  the  tenant.  If  the  tenant  had  attorned  to  the 
mortgagee,  which  he  ia  authorized  to  do  after  the  mortgage  has 
become  forfeited,  by  the  provisions  of  the  twelfth  section  of  the 
act  of  this  state  concerning  landlords  and  tenants,  (Rev.  Laws, 
192,)  the  case  might  be  varied.  Then  he  would  bo  acting  on 
the  consent  of  the  tenant  and  with  his  acknowledgment  of  tlio 


CASES  IN  CHANCERY, 


Price  v.  Smith  et  al. 


mortgagee  as  his  landlord,  bat  in  the  present  case  the  proceedirg 
is  altogether  adverse.  The  decisions  in  the  state  of  New- York 
Lave  been  uniform  against  the  right  of  the  mortgagee  to  maintain 
this  suit  or  to  destrain  on  the  tenant  for  rent ;  Jackson  v.  Fuller^ 
4  John.  Rep.  215 ;  McKlrcher  v.  Ilawley,  16  John.  Hep.  283 ; 
Jones  v.  Clark,  20  John.  Rep.  CO. 

In  Moss  v.  Gallimore  and  another,  Douglass,  279,  a  lead- 
ing case,  it  was  held  that  a  mortgagee  might  claim  the  rent  of 
the  tenant,  but  there  the  lease  was  made  before  the  mortgage. 
In  such  case  all  the  mortgagor's  right  to  the  lease  passed  .to  tho 
mortgagee,  and  with  out  this  power  over  the  tenant,  as  his  right 
is  prior  to  the  mortgage,  he  could  not  be  dispossessed,  and  might 
retain  the  possession  and  delay  the  mortgagee  from  recovering 
his  debt  or  interest  for  the  term  of  his  lease.  I  am  referred  by 
complainant's  counsel  to  a  late  case  in  9  Bamewall  and  Cress- 
well,  243,  the  case  of  Pope  and  another  v.  Biggs,  reported  in 
17  Eng.  Com.  Law,  368.  That  was  a  case  at  law,  and  the  rea- 
soning of  the  judges  is  certainly  opposed  to  the  current  of  deci- 
sions on  this  subject.  Yet  that  case  is  not  like  the  present. 
There  the  mortgagor  had  become  insolvent,  and  the  tenant  had, 
upon  notice,  voluntarily  paid  the  rent  to  satisfy  the  mortgagee 
which  were  prior  to  the  lease.  The  action  was  brought  by  ths 
assignees  of  the  bankrupt  mortgagor,  against  the  tenant,  for  tho 
same  rent,  and  the  court  protected  him  from  a  recovery  by  reason 
of  the  payments  he  had  made.  The  tenent  paid  voluntarily,  it 
was  no  adversary  proceeding  as  to  him.  This  very  distinction 
is  recognized  in  the  opinion  of  chief  justice  Spencer,  in  the  caso 
in  20  John.  Rep.  before  referred  to.  The  tenant  in  such  case  is 
considered  as  having  attorned  to  the  mortgagee,  and  as  the  ton- 
ant  might  be  turned  out  of  possession  by  ejectment  and  exposed 
to  costs,  it  is  declared  to  be  his  right  to  attorn  without  the  im- 
putation of  disloyalty  to  the  mortgagor. 

But  if  the  mortgagee  might  at  law  sue  for  and  recover  the  rent, 
i:  would  not  follow  that  this  court  would  interfere.  That  he  has 
such  remedy  at  law,  would  rather  furnish  a  reason  why  he  shonld 
go  there.  I  ain  well  satisfied  that  in  a  case  like  the  present, 


520  CASES  IK  CHANCERY, 


Price  T.  Smith  et.  al. 


where  the  lease  is  subsequent  to  the  mortgage,  no  account  can  be 
had  against  the  tenant  in  this  court  for  the  rents.  No  case  of  the 
kind  is  cited,  Nor  can  any  serious  injury  arise,  as  the  party  by 
his  ejectment  may  dispossess  the  tenant,  and  thereby  entitle  him- 
self to  the  rents  and  profits  at  law.  This  view  appears  «to  me 
most  consistent  with  the  general  relations  established  in  all  courts 
of  equity  to  exist  between  the  mortgagor  and  mortgagee,  treating 
the  former  as  the  owner  of  the  property,  entitled  to  the  rents  and 
profits  and  enjoyment  of  the  same  until  the  mortgagee  claims  and 
asserts  his  right  to  possession  by  action  at  law,  or  by  foreclosure 
in  this  court.  It  is  also  in  accordance  with  the  decisions  in  the 
supreme  court  of  this  state  and  of  the  state  of  New- York,  and 
with  the  current  of  the  English  cases.  I  am  also  informed  that 
in  the  case  of  IZdward  I.  Earl  complainant  and  John  G.  Ben- 
son and  others  defendants,  in  this  court,  a  decision  was  made  in 
the  time  of  chancellor  Williamson  coming  to  the  same  result,  but 
as  that  case  in  not  reported  I  have  not  been  able  to  see  the  opin- 
ion or  avail  myself  of  the  views  there  taken. 

The  demurrer  must  be  sustained,  with  costs. 


DELIYEKED    OCTOBEB    TKBM,    1839. 

TESSE  H.  BOWEN  v.  DAVID  TICKERS  and  others. 

A."  a  general  rule,  the  specific  performance  of  a  contract  of  sale  will  not  ba 
decreed  in  equity,  if  the  vendor  cannot  make  a  good  title,  although  the  con- 
tract has  made  no  provision  as  to  covenants  of  warranty  to  bo  inserted  in 
the  conveyance. 

Bnt  if  it  clearly  appear  that  it  was  the  intention  of  the  parties  that  the  pur- 
chaser Bl.ould  lake  the  risk  on  himself,  and  receive  only  a  conveyance  of 
such  interest  us  the  vendor  had,  a  specific  performance  of  the  contract  will 
bo  decreed  agaiust  tho  purchaser,  though  the  vendor  hao  no  title. 

TUB  bill  states,  that  on  the  27th  of  October,  1834,  Federal 
Champion,  of  May's  Landing,  in  the  county  of  Gloucester,  being 


CASES  IN  CHANCERY,  521 


Bowen  v.  Vickere  et 


indebted  to  David  Vickere,  of  Philadelphia,  in  a  large  sum  of 
money,  for  goods  sold  and  delivered,  made  his  promissory  note 
to  said  Vickers,  and  thereby  promised  to  pay  him  or  his  order 
fifteen  hundred  dollars  in  eighteen  months ;  and  that  the  com- 
plainant and  one  Daniel  Frazier  became  security  for  the  payment 
of  the  said  note  when  due  :  and  that  the  said  Federal  Champion 
and  the  complainant,  on  the  29th  day  of  the  same  month  of 
October,  gave  to  Vickers  another  note  for  seven  hundred  and  one 
dollars,  payable  at  eighteen  months  after  date.  That  at  the  ex- 
ecution of  the  said  notes  the  said  Federal  Champion  was  in  pos- 
session of  a  large  amount  of  real  estate,  but  was  indebted  to  a 
large  amount  and  pressed  by  his  creditors  for  payment.  That 
the  sole  object  of  the  complainant  in  becoming  security  for  Cham- 
pion for  the  payment  of  the  first  of  the  said  notes,  and  joining 
with  him  in  the  second,  was  the  hope  and  belief  that  if  he  could 
relieve  the  said  Champion  from,  immediate  pressure,  and  prevent 
the  sacrifice  of  his  property  by  a  sale,  he  would  be  enabled  to 
procure  from  the  property  of  said  Champion  the  whole  amount 
of  a  debt  due  from  him  to  the  complainant.  That  on  the  19th 
day  of  January,  1836,  before  either  of  the  said  notes  became 
due,  the  complainant  and  Vickers  entered  into  a  written  agree- 
ment respecting  the  said  notes,  signed  by  the  complainant  and 
said  Vickers,  in  the  words  and  figures  following,  viz.: — "  Articles 
of  agreement  between  David  Vickers,  of  the  city  of  Philadelphia, 
in  the  state  of  Pennsylvania,  and  Jesse  II.  Bowen,  of  May's  Land- 
ing, in  the  township  of  Hamilton,  in  the  state  of  New-Jersey. 
The  said  Bowen  promises  to  make  to  the  said  David  Vickers  a 
deed  for  the  following  lands  purchased  of  John  Jacob  Vander- 
kcmp,  viz.:  one  tract  of  sixty  and  sixteen  hundredths  acres ;  ono 
tract  of  six  hundred  and  seventy-one  acres;  and  one  tract  of  seven 
hundred  and  fifty-five  acres — making  in  the  whole  fourteen  hun- 
dred and  eighty-six  acres  and  sixteen  huudredths  of  an  acre  ; 
ur.d  his  promissory  note  for  five  hundred  dollars,  payable  on  the 
iirst  of  April  next,  at  the  State  Bank  at  Camden ;  and  a  tract  of 
1  -.nd  sold  by  James  "W.  Caldwell  as  the  property  of  Federal 
C.i  impion,  as  by  deed  dated  the  14th  of  March,  A.  D.  1835,  be- 
67 


522  CASES  IN  CHANCERY, 

Bowen  v.  Vickers  et  al. 

jug  about  five  hundred  acres,  more  or  less — which  said  deed  is 
to  be  executed  in  one  month  from  this  date,  January  19th,  1836. 
And  the  said  David  Vickers  on  his  part  promises  to  deliver  to  the 
said  Jesso  II.  Bowen  the  promissory  notes  he  holds  against  him 
the  said  Jesse  II.  Bowen  and  Federal  Champion,  for  seven  hun- 
dred and  one  dollars,  with  interest  from  date,dated  October  29th, 
1834,  payable  in  eighteen  months  after  date  ;  and  a  note  for  fif- 
teen hundred  dollars  dated  October  27th  payable  eighteen  montha 
after  date, with  interest,drawn  in  favor  of  David  Vickers  by  Fed- 
eral Champion,  on  which  note  Jesse  II.  Bowen  and  Daniel  Fra^ 
zier  entered  security.  Dated  this  19th  January,  1836." 

The  bill  further  states,  that  in  pursuance  of  the  said  agreement 
on  the  10th  day  of  February,  1836,  and  within  one  month  after 
the  date  of  the  agreement,  the  complainant  made  his  promissory 
note  to  said  Vickers  for  five  hundred  dollars.  That  in  further 
pursuance  of  the  said  agreement,  on  the  9th  day  of  February, 
1836,  he  together  with  his  wife,  Sarah  B.  Bowen,  executed  to 
the  said  David  Vickers  a  deed  of  bargain  and  sale  for  the  prem- 
ises mentioned  in  the  agreement,  which  deed,  as  set  forth  in  the 
bill  of  complaint,  contains  the  following  covenant  and  another, 
viz.:  "  And  the  said  party  of  the  first  part,  for  themselves,  their 
heirs,  executors  and  administrators,  do  hereby  covenant  and  agree 
to  and  with  the  said  David  Vickers,  his  heirs  and  assigns,  that 
they  have  not,  nor  hath  either  of  them,  done  or  suffered  to  bo 
done,  any  act  or  thing,  whereby  the  premises  aforesaid  are  in- 
cumbered  in  title,  but  that  the  same  are  now  hereby  conveyed  as 
free  and  clear  as  they  were  vested  in  said  Jesse  II.  Bowen  ;  and 
against  the  lawful  demand  or  claim  of  all  persons  claiming  the 
same  under  him,  his  heirs  or  assigns,  will  warrant  and  for  ever 
defend  by  these  presents."  That  the  complainant,  on  the  10th 
day  of  February,  1836,  caused  and  procured  the  said  note  and 
the  Baid  deed,  duly  acknowledged,  to  be  tendered  to  the  said 
David  Vickers;  but  the  said  David  Vickers  refused  to  receive  the 
same,  or  to  give  up  to  the  complainant  the  notes  of  Federal 
Champion,  for  the  payment  of  which  the  complainant  was  liable, 
as  by  the  aforesaid  agreement  the  said  Vickcrs  was  bound  to  do. 


CASES  IN  CHANCERY,  523 


Bowen  v.  Tickers  et  al. 


That  on  tho  IStli  of  February,  1830,  the  complainant  again 
caused  his  said  note  for  five  hundred  dollars,  and  his  deed  for  tho 
premises  specified  in  said  agreement,  to  be  tendered  to  the  said 
])avid  Vickers,  and  demanded  of  the  said  Vickers  the  two  notes 
of  Champion  which  the  complainant  was  bound  to  pay ;  but  that 
Vickcrs  refused  to  receive  the  note  or  deed  of  complainant,  or  to 
surrender  the  notes  of  Champion,  upon  the  pretence  that  the  com- 
plainant had  no  title  for  the  premises  described  m  the  deed.  Tho 
bill  charges,  that  the  complainant  had  good  title  for  the  said  pre- 
mises, which  is  particularly  set  forth  in  the  bill.  The  bill  further 
states,  that  the  said  David  Vickers,  after  the  tender  on  the  part 
of  the  complainant  to  comply  with  the  aforesaid  agreement  on 
his  part,  and  after  the  refusal  of  the  said  Vickers  to  comply  with 
the  said  agreement,  made  a  pretended  endorsement  and  assign- 
ment of  the  said  notes  given  by  Champion,  and  for  which  the 
complainant  had  become  security,  to  one  Elijah  Van  Syckle,  and 
caused  two  actions  to  be  commenced  on  said  notes,  in  the  name 
of  the  said  Elijah  Van  Syckle,  against  the  complainant,  in  tho 
inferior  court  of  common  pleas  of  the  county  of  Gloucester,  in 
order  to  avoid  the  performance  of  his  agreement  with  the  com- 
plainant, and  to  compel  the  payment  of  said  notes  by  the  com- 
plainant. That  the  said  assignment  was  a  mere  prentence,  and 
was  made  without  value,  and  that  Vickers  is  still  the  bonafoh 
owner  of  said  notes  ;  and  that  Van  Syckle,  at  the  time  of  the  pre- 
tended assignment  of  said  notes,  well  knew  of  the  agreement 
between  the  complainant  and  Vickers  in  relation  thereto.  Tho 
bill  prays  a  decree  for  the  specific  performance  of  the  contract 
between  the  complainant  and  Vickers,  and  an  injunction  to  re- 
strain further  proceedings  at  law  against  the  complainant,  for  tho 
recovery  of  the  amount  due  on  the  notes  of  Federal  Champion, 
until  the  further  order  of  the  court. 

The  defendant's  answer  denies  many  of  tho  charges  contained 
in  the  complainant's  bill,  bnt  the  principal  ground  of  defence  re- 
lied on  in  argument,  was  the  fact  charged  in  the  answer,  that  the 
complainant  had  no  title  whatever  for  the  land  which  by  the 
agreement  he  was  bound  to  convey  to  the  defendant. 


524:  CASES  IN  CHANCEKY, 


Bowcn  v.  Vickers  et  al. 


A  replication  having  been  filed,  evidence  was  taken  by  both 
parties,  and  the  cause  was  heard  at  July  term,  1839,  upon  the 
pleadings  and  proofs. 

Wall,  for  complainant. 
Jeffers,  for  defendant. 

THE  CHANCELLOR.  There  is  but  one  question  in  this  cause 
proper  to  be  discussed  and  settled  at  this  time.  That  relates  to  the 
true  construction  of  the  agreement  between  the  complainant  and 
David  Vickers,  entered  into  on  the  19th  of  January,  1836. 

Mr.  Vickers,  who  is  a  wholesale  grocer  in  the  city  of  Philadel- 
phia, sold  goods  in  the  year  1833  to  Federal  Champion,  to  the 
amount  of  four  thousand  five  hundred  dollars.  Champion  became 
embarrassed  in  his  circumstances,  and  the  complainant,  who  is 
charged  with  being  interested  in  the  business,  (but  whether  he 
was  so  in  reality  or  riot  does  not  appear,  and  is  not  material  here) 
agreed  to  compound  this  debt  of  Champion  by  securing  to  Mr. 
Vickers  fifty  per  cent,  of  his  claim.     This  arrangement  was  car- 
ried into  effect  as  proposed,  and  the  security  was  given,  payable 
in  eighteen  months.    On  this  settlement  Champion  gave  to  Mr. 
Vickers  his  own  note  for  fifteen  hundred  dollars,  secured  by  the 
complainant  and  one  Daniel  Frazier,  and  the  complainant  and 
Champion  made  their  joint  note  to  Mr.  Vickers  for  the  further  sum 
of  seven  hundred  and  one  dollars.  While  these  new  notes  were 
running,  and  before  they  came  to  maturity,  the  complainant  made 
another  agreement  with  Vickers,  by  which  Vickers  was  to  give 
up  the  said  notes  upon  receiving  from  the  complainant  a  note  for 
five  hundred  dollars,  and  a  deed  for  certain  lands.  The  bill  seeks 
to  compel  on  the  part  of  Vicker  a  specific  performance  of  this  last 
agreement.   The  defendant  resists  it  upon  the  ground,  that  after 
examination  he  has  discovered  that  the  complainant  has  no  titlo 
'to  the  lands  which  he  agrees  to  convey.     The  complainant  has 
tendered  to  the  defendant  a  deed  for  the  lands  without  any  per- 
sonal covenants  except  as  to  his  own  acts,  and  contends  that  by 
the  terms  of  the  contract  he  made  no  stipulation  for  a  good  titlo. 


CASES  IN  CHANCERY,  525 


Bowen  v.  Vickers  ot  al. 


and  that  the  defendant  must  fulfil  it  whether  he  can  show  a  titlo 
or  not.  This  raises  the  question  upon  the  terms  of  the  agree- 
ment. The  words  used  in  the  agreement  are,  "  The  said  Bowen 
promises  to  make  to  the  said  David  Vickera  a  deed  for  the  fol- 
lowing lands,"  &c. 

The  complainant's  counsel  has  relied  in  support  of  his  proposi- 
tion that  he  made  no  stipulation  as  to  title,  much  on  the  case  of 
Van  Epps  v.  The  Corporation  of  Schenectady,  in  12  Johns. 
40  G.  That  was  an  action  at  law  by  the  vendee,  to  recover  back 
the  consideration  money  which  he  had  paid  on  the  purchase  of  a 
number  of  lots,  on  an  agreement  similar  to  the  present  on  tho 
part  of  the  defendants,  to  give  the  plaintiff  a  deed  for  the  same. 
Under  that  agreement  the  defendants  tendered  him  a  quit-claim 
deed,  which  the  plaintiff  refused  to  take,  insisting  that  he  was  en- 
titled to  a  deed  with  the  ususal  covenants,  and  brought  his  action 
to  recover  back  his  money.  It  will  be  observed,  this  was  not  a 
dispute  about  title,  but  about  the  kind  of  deed  the  plaintiff  had 
a  right  to  demand  under  his  contract.  The  court  decided,  that 
an  agreement  to  execute  a  deed  was  complied  with  by  conveying 
the  estate  without  personal  covenants  or  warranty,  and  refused  to 
give  judgment  for  the  money.  It  was  said  that  the  estate  would 
pass  by  this  deed,  and  if  it  was  intended  to  require  any  personal 
covenants,  they  should  be  mentioned.  Do  the  court  mean  to  say, 
that  if  it  should  turn  out  that  the  defendants  had  no  title  to  tho 
lots,  the  plaintiff  could  not  recover  the  consideration  money  ? — 
They  do  not,  but  on  the  contrary,  it  appeared  in  that  very  case, 
that  the  defendants,  as  to  three  of  the  lots,  had  no  title,  and  tho 
plaintiff  had  judgment^o  tanto.  Technically  speaking,  a  stip- 
ulation to  give  a  deed,  does  not  necessarily  imply  that  it  must 
contain  all  or  any  of  the  usual  covenants,  though  it  may  imply  a 
title  in  the  grantors.  The  case  of  Ketchum  Y.  Evertson,  in  13 
Johns.  363,  was  also  cited.  That  case  is  the  same  with  the  ono 
just  referred  to,  and  is  based  upon  it.  It  has  reference  only  to  tho 
f orm  of  the  deed.  Judge  Spencer,  in  delivering  the  opinion  of  tho 
court,  proceeds  on  that  ground  alone.  He  says,  "  a  deed  docs  not 
ex  vi  termini,  mean  a  deed  with  covenants  of  warranty,  but  only 
an  instrument  with  apt  terms  conveving  the  property  sold.  In 


CASES  IN  CHANCERY.  52t5 

Bowen  v.  Viekers  et  al. 

Barrow  v.  Bispham,  6  Hoisted,  119,  it  is  said  that  the  words 
"  good  and  sufficient  deed,"  do  not  mean  a  good  title,  unless  there 
is  something  in  the  agreement  or  attendant  circumstances  to  show 
that  the  parties  intended  a  good  title  should  be  given.  That  was 
a  contract  made  by  the  plaintiff  to  sell  the  defendant  all  his  right 
to  the  defendant's  own  property,  which  he  had  acquired  under  a 
sale  of  lands  for  direct  taxes.  The  object  of  the  purchaser  was  to 
remove  out  of  the  way  a  pretended  claim  on  his  property.  THe 
contract  was  no  longer  executory,  for  the  deed  had  been  executed 
more  than  eight  years,  and  accepted  by  the  defendant.  The  deed 
as  drawn  conveyed  only  the  plaintiffs  right,  without  any  cove- 
nants whatever.  The  court  could  have  no  difficulty  in  such  a 
case  in  believing  that  the  parties  never  intended  to  require  a  per- 
fect title  at  the  hands  of  the  plaintiff :  all  they  designed  was,  that 
he  should  pass  over  all  the  right  he  had.  These  are  all  cases  at  law. 
The  true  rule  in  this  court  on  this  subject,  is  well  expressed  by 
chancellor  "Walworth,  in  Bates  v.  Delavan,  5  Paige,  307.  He 
says,  "  As  a  general  rule,  a  court  of  equity  will  not  decree  the  spe- 
cific performance  of  a  contract  of  sale,  if  the  vendor  cannot  make 
a  good  title,  although  the  contract  has  made  no  provision  as  to 
covenants  of  warranty  to  be  inserted  in  the  conveyance.  An  ex- 
ception, however,  to  that  rule  exists,  where  by  the  contract  of  sale 
the  vendee  expressly  assumes  the  risk  as  so  the  title,  or  agrees  to 
take  such  a  title  as  the  vendor  is  able  to  give."  The  power  of 
the  court  in  compelling  a  specific  performance  is  always  discre- 
tionary, and  must  be  exercised  in  such  a  way  as  shall  best  advance 
the  truth  and  justice  of  the  case.  I  believe,  from  an  examination 
of  this  agreement  and  the  circumstances  attending  the  whole  case 
that  the  complainant  was  to  convey  a  legal  title  to  the  defendant. 
This  was  the  plain  intent  of  the  parties.  Can  it  be  believed  for 
one  moment  that  the  defendant,  who  had  already  relinquished 
one  half  of  his  debt  on  obtaining  security  for  the  remainder,  in- 
tended by  this  agreement  to  cancel  this  remainder  except  five 
hundred  dollars,  by  accepting  a  deed  from  the  complainant  for 
lands  whether  he  had  a  title  or  not  ?  If  such  had  been  the  mean- 
ing, it  should,  and  I  think  would,  have  been  expressed  in 
very  different  language.  I  do  not  mean  to  say  that  a  specific 


CASES  IN  CHANCERY,  527 


Dowcn  v.  Vickers  et  al. 


performance  of  a  contract  will  not  be  decreed  in  any  case  where 
the  complainant  has  no  title.  It  will  be,  provided  it  appear  that 
it  was  the  clear  intention  of  the  parties  that  the  purchaser  should 
take  the  risk  on  himself,  and  was  to  receive  only  a  conveyance  of 
such  interest  as  the  vendor  had.  This  intent  must,  however,  be 
plain  and  explicit,  not  got  at  by  a  forced  or  technical  construction 
of  words.  The  whole  instrument  must  be  looked  at,  as  well  as 
the  scope  and  object  of  the  negociation.  The  vice-chancellor,  in 
the  case  of  Jane  Hunter  on  petition,  &c.  1  Edwards,  6,  held 
that  the  words  in  the  covenant  of  a  lease  authorizing  the  lessee  "to 
purchase  "  by  paying  a  certain  sum,  meant  the  whole  title  free 
from  incumbrances.  It  is  a  bold  request  to  make  of  a  court  of 
equity,  to  enforce  specifically  an  agreement  of  sale,  when  the  de- 
fendant stands  before  the  court  alleging,  and  offering  to  prove, 
that  the  plaintiff  has  no  title  for  the  lands  which  he  proposes  to 
convey.  Even  if  the  construction  of  the  agreement  was  doubtful, 
that  doubt  should  be  resolved  in  favor  of  the  defendant. 

I  shall  pursue  in  this  case  the  well  settled  practice  of  the  court, 
by  referring  it  to  a  master  to  ascertain  the  title  of  the  complain- 
ant to  the  property,  and  the  incumbrances,  if  any,  upon  the  same. 

Order  accordingly. 

CITED  in  Lovnsbery  T.  Locandcr,  10,  C.  E.  Or.  557. 


DELIVERED  JULY  TERM,  1841. 


HOBERT  WHITE  v.  GEORGE  DUMMER,  et  al. 

Under  the  statute  of  New-Jersey  regulating  tho  practice  in  chancery,  the  de- 
fendant, nuder  tho  ustuil  order  to  answer  after  demurrer  overruled,  cannot 
fi  e  a  plea. 

ON  a  bill  for  foreclosure,  a  decree  pro  confesso  had  been  tak- 
en against  all  the  defendants  except  the  purchaser  of  the  equity 
of  redemption,  who  appeared  and  demurred  to  the  bili.  The  de- 
murrer was  overruled  at  April  tenn,  and  the  usual  order  made, 
requiring  the  defendant  to  answer  in  forty  days.  A.  plea  was 
tiled  within  the  time  limited  in  the  rule,  but  no  answer. 


523  CASES  IN  CHANCERY, 


White  v.  Darumer  et  nl. 


Vroom,  for  complainant,  moved  to  set  aside  the  plea  as  impro- 
perly pleaded.  He  insisted  that  under  the  order  to  answer,  the 
defendant  was  not  at  liberty  to  file  a  plea.  The  practice  was  re- 
gulated by  the  statute,  (Elmers  Dig.  57,  sec.  20.)  Its  terms 
were  imperative,  requiringthe  defendant  to  answer,  after  either  a 
demurrer  or  plea  had  been  overruled.  He  further  insisted,  that 
the  complainant  was  entitled  to  a  decree  pro  confesso,  for 
want  of  an  answer.  That  if  further  time  was  allowed  to  answer, 
the  whole  object  of  the  defendant  in  pleading  irregularly  would 
be  attained.  That  the  plea  was  manifestly  frivolous,  and  filed 
merely  for  delay. 

JIamilton,  contra.  By  a  sound  construction  of  the  statute,  the 
defendant  is  entitled  to  plead  under  an  order  to  answer,  after  de- 
murrer overruled.  Such  is  the  practice  in  the  court  of  chancery 
in  England.  The  construction  of  the  New-Jersey  statute  has 
always  been  in  conformity  to  the  English  practice.  But  if  the 
court  adopt  a  different  construction,  and  hold  the  plea  to  be  irreg- 
ularly put  in,  the  defendant,  under  the  circumstances,  should  be 
allowed  time  to  answer.  A  decree  pro  confesso  would  be  a  sur- 
prise upon  the  party,  who  has  pleaded  in  conformity  to  the  pre- 
vious practice  of  the  court,  and  deprive  him  of  all  opportunity 
of  making  defence. 

BY  TITE  CHANCELLOR.  I  entertain  no  doubt  of  the  true  con- 
struction of  the  statute.  After  demurrer  overruled,  the  defen- 
dant cannot  under  a  general  order  to  answer,  file  a. plea.  If  it  bo 
essential  to  the  defendant's  rights  that  a  plea  should  be  interposed 
after  a  demurrer  has  been  overruled,  the  defendant  should  obtain 
a  special  order  for  that  purpose.  But  as  the  practice  appears  not 
to  have  been  well  settled,  and  as  the  defendant's  solicitor  may 
have  acted  under  an  erroneous  impression  respecting  it,  I  shall 
allow  the  defendant  the  usual  time  to  answer.  Let  the  plea  be 
stricken  out,  and  the  defendant  answer  in  forty  days. 

Order  accordingly. 


INDEX. 


A. 

ABATEMENT.   Vide  PP.AOTICE,  I. 

ACCOUNT. 

Upon  a  decree  for  an  account,  upon 
a  bill  tiled  by  a  creditor  against 
an  administrator,  the  account  can- 
not bo  taken  for  the  benefit  of  the 
complainant  alone,  but  must  be 
for  the  benefit  of  all  such  credi- 
tors as  choose  to  come  in  before 
he  master.  Hazcn  v.  Durling^s 

33 


Vide  EXECTTTOKS  AND  ADMINISTBA- 

TOBS,  10-15. 
MORTGAGE,   I.  11. 

ACKNOWLEDGMENT. 

Vide  DEED. 

ADMINISTRATION. 

Vide  EXECUTOBS  AND  ADMLNISTEA- 

TOB8. 

ADMINISTRATOR. 
Vide  EXECDTOBS  AND  ADMKOSTKA- 

TOB8. 

ADULTERY. 

Vide  EVIDENCE,  14,  15.  PLEADING, 
II.  13,  14,  15. 

AFFIDAVITS. 
JTide  PRACTICE,  III. 
AGREEMENT. 
Specific  Performance  of. 

I.  This  court,  on  a  bill  for  specific 
performance,  not  being  bound 
to  aid  the  complainant  unless 
LU  claim  is  founded  in  justice, 


will  look  into  all  the  circum- 
stances,  and  see  whether  any 
fraud  was  practised  at  the  time 
of  sale.  Milter  v.  Chctwood,  199 

2.  If  misrepresentations  were  made 
at   the  time,  though  not  in  the 
writing,  calculated  to  mislead  in 
any  essential  particular,  the  party 
will    bo  left  to  his  remedy    at 
law.  ib. 

3.  On  a  bill  for  a  specific  perform- 
ance, the    court  will   grant    its 
aid  or  not,  according  to  the  jus- 
tice of  the  case;  and  it  will  never 
interfere   where    the   party    has 
practiced  any  fraud,  or  been  guil- 
ty of  misrepresentation  in   any 
material  particular*  ib. 

4.  That   the  purchaser  bought  by 
the  lot  or'  parcel  and  not  by  the 
acre;  that  the  land  was  before  his 
eyes  and  subject  every  d:iy  to  his 
observation — can   furnish   no  ex- 
cuse to  the  vendor  for  his  mi«re- 
presentatiqn.      lie    is   bound  to 
declare  the  truth  at  any  rate.   ib. 

5.  An   application  to  the  court  to- 
compel  the  specific  performance 
of  a  contract  rests  in  sound  dis- 
cretion, and  the  contract  will  be 
enforced  or  not,   as  shall  appear- 
most   agreeable    to  justice    and. 
equity.    Torrey  v.  JBuck,         3GC. 

d.  Where  the  decree  and  execution: 
are  against  the  wife  of  the  mort- 
gagor, and  it  afterwards  proves 
that  her  right  in  the  mortgaged 
premises  is  not  released,  a  speci- 
fic performance  will  not  be  de- 
creed, although  the  property  wa§ 


530 


INDEX. 


sold  subject  to  all   legal  prior  in- 
cumbrances.  Ely  v.  Perrine,  396 

7.  The  property,    under  such   cir- 
cumstances, (to  entitle  the  sheriff 
to  a  decree  against  the  purchaser 
for  a  specific  performance,)  should 
be  sold  with  a  ("istinct  recognition 
of  the  dower  right  of  the  wife  of 
the  mortgagor.  t&. 

8.  A  decree  for  specific  performance 
will  never   be  made,   unless  sub- 
stantial justice  is  done  thereby, 
but  the  parties  will  be  left  to 
their  remedies  at  law.  ib. 

9.  As  a  general  rule,  the  specific 
performance  ot  a  contract  of  sale 
will  not  be  decreed  in  equity,  if 
the  vendor  cannot  make  a  good 
title,   although  the  contract  has 
made  no  provision   as  to   cove- 
nants of  warranty  to  be  inserted 
in  the   conveyance.     JBowen   v. 
Victors,  520 

10.  But  if  it  clearly  appear  that  it 
was  the  intention  of  the  parties 
that  the  purchaser  should  take 
the  risk  on  himself,  and  receive 
only  a  conveyance  of  such  interest 
as    the  vendor    had,  a    specific 
performance  of  the  contract  will 
be  decreed  against  tho  purchaser, 
though  the  vendor  has  no  title,  ib. 

Vide  EVIDENCE,  7, 17, 18.  22,  23,  24. 
LANDLORD  AND  TENANT,  1. 

ALIMONY. 
Vide  DIVORCE. 

AMENDMENT. 
Vide  PRACTICE,  I. 

ANCIENT  LIGHTS, 

VJde  NOIBANCB. 

ANSWER. 
Vide  PLEADING,  III. 


APPEAL. 

Vide   PREROGATIVE    COURT,     1-8. 

ARBITRATION. 

Vide  AWARD. 

ARBITRATORS. 

Vide  AWARD. 
ASSIGNMENT  AND  ASSIGNEE. 

1.  The  assignee  of  an  heir,  orperson 
claiming  an  interest  under  a  will, 
having  an  opportunity  of  acquir- 
ing a  full  knowledge  of  the  con- 
dition of  the  estate,  will  stand  in 
no  hotter  situation  in  asking  the 
interposition  of  this  court,   than 
the  heir  or  legatee  himself.    Gest 
v.  Flock,  108 

2.  Under  an  assignment  made  by 
an  insolvent  debtor,  all  his  estate 
passes  ;   without  reference  to  the 
manner  in  which  it  was  acquired. 
Whatever  rights  he  may  have  in 
the  property  of  his  wife,  acquired 
by   virtue  of  his  marriage,    will 
pass  to  the  assignee.      Oulcalt  v. 
Van  Winkle,  513 

8.  It  seems  that  assignments  in 
bankruptcy  or  by  operation  of 
law  will  not  deprive  the  wife  of 
her  right  of  survivorship,  unless 
some  act  is  done  by  the  assignee 
reducing  her  chooses  in  action  in- 
to possession.  ib. 

AWARD.  | 

1.  To  impeach  an  award  in  equity, 
there  must  be  corruption,  partiali- 
ty, or  gross  misbehaviour  in  the 
arbitrators,  or  some  palpable  mis- 
take made  by  thevn  in  law  or  fact. 
Sclienk's  adm'r  v.  Cuttrell     297 

2.  A  mistake  in  the  law  must  bo  a 
plain  one,  and  upon  some  material 
point  affecting  the  case.    A  mis- 
take in  tho  fact  must  in  general 
be  such  as  the  arbitrator  himself 
would  admit.  ib. 


INDEX. 


531 


8.  An  error  in  judgment  on  the 
merits,  committed  by  tho  arbitra- 
tors, or  a  mistake  in  the  admission 
or  rejection  of  evidence,  not  ma- 
terially affecting  the  decision,  is 
no  ground  for  the  interposition 
of  a  court  of  equity.  ift. 

4r.  If  the  arbitrators  receive  the 
statement  of  one  of  the  parties  as 
to  material  facts,  without  proof, 
when  objection  is  made  by  the 
adverse  party,  it  is  an  impropriety 
so  gross  as  to  call  for  th'e  aid  of 
the  court  id. 

5.  That  the  arbitrators  after  hear- 
ing the  evidence,  and  while  con- 
sidering their  award,  called  both 
the  parties  before  them,  and  asked 
one  of  them  questions  concerning 
the  case,  without  the  permission 
or  consent  of  the  other,  or  objec- 
tion made  by  him,  constitutes  no 
valid  objection  to  tho  award,  id. 

D. 

BANKRUPTCY. 
Vide  ASSIGNMENT,  8. 

BANKS, 

Vide  COKPOUATIONS.    FKATTD,  1—6. 
RECEIVERS,   8,  4. 

BARON  AND  FEME. 
Vide  HUSBAND  AND  WIFE, 

BILL. 
Vide  PLEADING,  IL 

BILL  OF  REVIVOR  AND  SUP- 
PLEMENTAL BILL. 
Vide  PRACTICE,  I. 

BOND.  ADMINISTRATION 

BOND. 

Vide  EXEOTTOBS  AND  ADMINIOTIIA- 
TOK«,  4,  5,  C,  7,  8. 


C. 

CANCELLATION 

The  mere  fact  of  the  destruction  of 
a  ^  bond  or  other  instrument, 
without  authority,  can  never  be 
set  up  against  the  right  of  him 
who  has  tlio  beneficial  interest. 
Trenton  Hanking  Co.  v.  Wood- 
ruff, 117 

Vide  MORTGAGE,  II.  HUBBAND  AND 
WIFE,  3.  DEED,  2.  EVIDENCE,  18. 

CAPACITY. 

1.  Old  age,  failure  of  memory,  and 
even    drunkenness,    do    not    of 
themselves  necessarily  take  away 
a  testator's  capacity.    He  may  b« 
ever  so  aged,  very  infirm  in  body, 
and   in  habits  of  intemperance, 
and  yet  in  the  eye  of  the  law- 
possess  that  sound  mind  necessary 
to    a   disposition    of  his  estate. 
Whitenack  v.  Strylcer,  • 

2.  What   constitutes  testamentary 
capacity,  or  the  "  sound  and  dis- 
posing mind  and  memory"  e<scn- 
tial  in  a  testator.   LWM  v.  Willi- 
amson, 82 

Vide  EVIDENCE,  1 — 8, 11. 
CONTRACT. 

Vide      AOKEKMENT.      VENDOR    ANY 
PCROITAfiEE* 

CONVEYANCE. 

Vide  DERD. 
CORPORATIONS. 

I.  That  clause  in  tho  charter  of  the 
Trenton  Banking  Company  wli'c '» 
declares,  "  that  the  said  corpora- 
tion shall  not,  directly  or  indirect- 
ly, deal  or  trade  in  any  thing  ex- 
cept bills  of  exchange,  pro- 
missory notes,  gold  or  silver  bul- 
lion, or  in  tho  pale  of  goods  which 
shall  be  tho  produce  of  its  lands," 
was  designed  to  restrain  the  com- 


532 


INDEX. 


pnny  within  its  legitimate  sphere 
of  banking,  and  to  prevent  their 
embarking  in  other  kinds  of  busi- 
ness. The  company  may,  never- 
theless, receive  and  hold  bonds 
and  mortgages  by  way  of  securi- 
ty for  debts  duo  the  corporation; 
and  in  the  absence  of  proof  to  the 
contrary,  tiie  court  will  presume 
that  the  corporation  came  into 
possession  of  such  securities  law- 
i'ully,  and  within  the  scope  of 
their  chartered  powers.  Trenton 
Banking  Co.  v.  Woodruff,  117 

2  A  notice  to  the  cashier  is  notice 
to  the  bank.  He  is  the  author- 
ized agent  of  the  corporation  for 
all  purposes  within  the  sphere  of 
their  business.  ib. 

8.  The  act  entitled  "  An  act  to  re- 
strict the  circulation  and  dis- 
counts of  the  Patorson  Bank  for 
the  time  being,"  passed  February 
1st,  1838,  did  not  exempt  that 
bank  from  the  operation  of  the 
general  act  of  February  !Gth,1829. 
Oakley  v.  Paterson  Bank,  173 

4.  Under  the  charter  of  the  Eliza- 
beth-Town and  Somerville  Rail- 
road Company,  before  the  compa- 
ny can  take  the  land  for  the  con- 
struction of  their  road,  the  claims 
of  all  persons  having  rightsin  the 
land  arc-  clearly  to  be  satisfied,  as 
well  those  who  have  the  residuary 
interest  as  those  having  the  pres- 
ent estate.  EOM  v.  Elisabeth- 
Town  and  Somerville  Railroad 
Co.  422 

Vide     FRAUDS,    1-8.   INJUNCTION, 
8-10.  RECEIVERS,  2,  3,  4. 

COSTS. 

1.  Incases  of  doubt,  requiring  full 
investigation,  costs  before  the 
orphan's  court,  and  also  the  costs 
of  appeal,  with  reasonable  counsel 
ices  on  the  hearing,  will  be  direct- 
ed to  bo  paid  out  of  the  testator's 
estate.  Whitcnack  v.  Stnjkcr,  8 


2.  A  solicitor  employed  by  one  of 
several  executors  or  administra- 
tors, and  filing  a  bill  in  the  name 
of  all,  will  not  be  compelled  to 
pay  costs,  although  the  name  of 
one  of  the  administrators  be  in- 
serted in  the  bill  of  complaint 
without  his  consent.  Dares 
adrn'r  v.  Allen's  cx'r,  288 

COVENANTS. 

Vide  DEED,  5,  6,  7 

• 

D. 

DEBTOR  AND  CREDITOR. 

1.  A,judgmentfua<\  execution  creditor 
may  question   in  this  court  the 
validity  of  an  antecedent  judg- 
ment at  law.      Edgar  v.  Cleven- 
ger,  258 

2.  The  declaration  of  a  judgment 
creditor,   that    his  judgment  is 
confessed  to  keep  another  credi- 
tor,  who    is   seeking  to  obtain 
judgment,  out  of  his  money,  and 
that  if  such  creditor  had  not  sued, 
the   judgment  would  not    have 
been    confessed,     coupled    with 
proof  that  the  judgment  creditor 
is  a  man  of  no  property,  is  in- 
sufficient    to    overcome     direct 
proof  of  the  consideration  of  the 
judgment.  ib. 

3.  An  injunction  will  issue  at  the 
instance  of  an  execution  creditor 
to  restrain  the  debtor  in  execu- 
tion, and  a  prior  execution  credi- 
tor, from  selling  or  removing  any 
of  the   personal  property  levied 
on,  unless  by  sale  under  tho  exe- 
cution, until  the  second  execution 
is  satisfied.  ib. 

Vido      ACCOTTNT.      PARTNERSHIP, 

1,  2,  6,  7,  8.      ASSIGNMENT,  2. 

PtEADing,  I.  5.    VENDOB 

AND  PURCHASER,  4-7. 


INDEX. 


533 


DECREE. 

A  decree  of  this  court  is  a  judgment 
from  its  date  in  favor  of  all  the 
creditors,  and  they  are  entitled 
to  be  paid  rateably  unless  they 
have  some  legal  priority.  Hazcn 
v.  Durling't  adm'r,  133 

Vide  PRACTICE,  IV.  27-30.    MORT- 
GAGE, III. 

DEED. 

1.  It  is  not  a  substantial  objection 
to  a  deed,  that  the  acknowledg- 
ment bears  date  before  the  deed 
itself.    The  true  date  may  always 
be  shown.  Ge»t  v.  Flock,        108 

2.  The  parties  to  a  deed,  in  a  case 
not  affecting  third  persons,  may 
by  agreement  cancel  it,  if  it  be  not 
recorded ;  but  the  party  destroy- 
ing tlio  instrument  must  in  all 
cases  show  his  authority  for  so 
doing.  Faults  v.  Burns,         250 

3.  Suppressio   Deri    is    as   good    a 
ground  lor  setting  aside  a  convey- 
ance as  tuggettio  fal»i.  Torrey  v. 
Buck,  366 

4.  Deed   set  aside   as    fraudulent 
where  a  large  part  of  the  consid- 
eration was  paid  in  stock  of  a 
company  of  no   value,  although 
the  purchaser,  who  was  cashier 
of  the  company,  refused  to  ex- 
press any  opinion  about  the  stock 
or  its  value,  referring  the  vendor 
to  other  persons  for  information, 
and  although  the  vendor  himself 
declared  that  he  knew  it  was  a 
speculation  and  intended  to  run 
the  risk.  ib. 

5.  A  covenant  of  warranty  by  one 
of  several  grantors,  made  at  tho 
same  time  with  the  original  deed, 
and  endorsed  upon  it,  will  receive 
the  same  construction  as  if  made 
in  the  body  of  the  deed.  Cotter  v. 
Monroe  Manufacturing  Co.    467 


6.  Where  one  of  several  grantors, 
holding  one  hundred  and  forty- 
nine   shares  out  of  six  hundred 
and  eighty-two,    in    which   tho 
premises  are  held,  covenants  that 
lie  is  the  owner  of  tho  said  one 
hundred    and  forty-nine   shares, 
and  that  the  same  are  tree  of  in- 
cumbrances,  and  that  the  prantor 
will  warrant  and  defend  the  title 
to  tho  bargained  premises   to  the 
extent   of  taid  thare$    and   no 

further,  and  the  title  to  the 
premises  partially  fails,  the  ven- 
dor is  liable  on  his  covenant  only 
in  proportion  to  the  number  of 
shares  held  by  him.  ib. 

7.  In  the  construction  of  covenants, 
it   is  .1  settled  rule   both  at  law 
and  in  equity,  to  look  to  the  evi- 
dent meaning  of  the  parties,     ib. 

Vide  MISTAKE,  4.  MORTGAGE,  I.  3-9. 
DEMURRER. 

V'ido  PLEADING,    V. 

DEVISE. 
Vide  WILL,  5,  6,  9. 

DIVORCE. 

1.  There  is  no  fixed  general  rule 
by  which  to  graduate   the  allow- 
ance   for    alimony,    but    every 
case  must  depend  very  much  on 
its  own  peculiar  circumstances. 
Richmond  v.  Richmond,  90 

2.  The  allowance  will  not  be  grad- 
uated solely  by    a  regard  to  tho 
actual  rents  and  profits  of  the  de- 
fendants's  estate  at  the  time ;  nor 
by  the  actual  wants  of  the  com- 
plainant, ib. 

3.  The  defendant's  property  mu-t 
""  be  estimated  by  its  value  at  the 

date  of  the  master's  report,  and 
not  by  its  value  at  the  time  of 
filing  the  bill  ib. 

4.  Does  the  statute  of  Now  Jersey 

(Rev.  Lams,  668,  see.  t>)  authorize 


534: 


INDEX. 


any  further  process  to  enforce  a 
decree  for  the  alimony  and  main- 
tenance of  the  wife,  and  the  main- 
tenance of  the  children,  than  a 
eequestrutioh  ? — Qu.  '""*  *"""  id. 

6.  Where,  upon  a  decree  for  a  di- 
vorce, the  children  are  placed  by 
the  court  under  the  charge  of  the 
mother,  the  allowance  for  their 
maintenance  will  be  such  that  the 
children  may  be  fully  maintained 
in  a  manner  corresponding  with 
the  condition  in  life  of  the  father. 
The  court,  in  pbicing  tho  children 
under  the  charge  of  the  mother, 
mean  to  impose  upon  her  no  bur- 
den of  a  pecuniary  character,  ib. 

6.  It  seems  that  this  court  has  the 
power  at  any  time,  on  a  change 
of  circumstances,  to  vary  the  al- 
lowance for  alimony,  by  increas- 
ing or  diminishing  it.    '  ib. 

7.  it  is  not  necessary  that  actual 
violence  be  shown,  to  entitle  the 
party  to  a  divorce  on  the  ground 
of  extreme  cruelty .      Graecen  v. 
Graecen,  '•  459 

8.  Isolated  cases  of  wrong  or  cruel- 
ty of  long  standing,  ou  the  part 
of  the  husband,    will   not  entitle 
the  wife  to  a  divorce,  especially 
where  a  different  course  of  treat- 
ment   has  since  been    pursued. 
But  evidence  of  such   acts   are 
competent  and  proper,   in  con- 
nexion with  more  recent  acts,  to 
show  a  series  of  wrongs  and  in- 
juries on  the  part  of  her  hus- 

band.  ib. 

% 

9.  A  notice  served  by  the  husband 
on  the  wife,  after  the  institution 
of  proceedings  against  him  for  a 
divorce,  requesting  her  to  return, 
can    avail    "othing   in    his    de- 
fence ill 

Vide  PLEADING,  II.  13,  14,  15. 
CO 


DOWEJR. 

Vide  JURISDICTION,  1.    MORT- 
GAGE,  10,    23. 

E. 

ELECTION. 

1.  Where  a  sale  is  directed  to  be 
made  of  lands,  and  the  same  per- 
son is  entitled  to  the  lands  that 
would  take  the  money  in  case  of 
a  sale,   and  the  person  entitled 
elects  to  take  land,   a  court  of 
equity  will  not  disturb  that  elec- 
tion or  compel  a  sale.      Gest  v. 
Flock,  :.  ..V."108 

2.  The  giving  of  a  mortgage  by  the 
person  entitled,  is  a  clear  election 
on  his  part  to  take  land.  ib. 

ELIZAbiiTH-TOWN     &     SOM- 

ERVILLE  RAILROAD  CO. 

Vide  COBPOEATIONS.  INJUNCTION,  7 

EQUITY  OF  REDEMPTION. 

Vide  MORTGAGE.,  Ill 

EVIDENCE. 

1.  The  presumption  of  law  is  in 
favor  of  testamentary  capacity, 
and  ho  who  insists  on  the  contra- 
ry has  the  burden  of  proof,  except 
where  insanity    in  the  testator 
has  been  shown  to  exist  at  a  time 
previous  to  the  execution  of  the 
will ;    in  that   case  the  onus  is 
shifted,  and  the  party  offering  the 
will  is  bound  to  show  that  it  waa 
executed    at    a   lucid    interval. 
Whitenack  v.  Strykcr,  8 

2.  The  time  of  the  execution  of  the 
will  is  the  material  period    to 
which   the  court  must   look  to 
'ascertain  the  state  of  mind  of  the 
testator  ;  nnd  although  it  is  com- 
petent evidence  to  show  tho  state 
of  the  testator's  mind  at  any  time 
previous  or    subsequent   to    the 
execution  of  the  will,   yet  such 


INDEX. 


533 


proof  is  always  liable  to  bo  over- 
come by  satisfactory  evidence  that 
the  testator,  at  the  time  ho  exe- 
cuted the  writing,  had  the  poses- 
sion  of  his  faculties  ib. 

8.  The  testamentary  witnesses,  their 
opinions,  and  the  facts  they  state 
as  occurring  at  the  time  of  the 
execution  of  the  writing,  uro  to 
be  particularly  regarded  by  the 
sourt.  ib. 

4.  The  opinions  of  witnesses  other 
v  than  the  testamentary,  as  to  the 
capacity  of  the  testator,  are  to  be 
received  as  the  slightest  kind  of 
evidence,  except  so  far  as  those 
opinions  are  based  on  facts  and 
occurrences  which  are  detailed 
before  the  court.  ib. 

6.  Witnesses  are  to  state  the  facts ; 
"  and  it  is  the  business  of  the  court, 

from  those  facts,  to  pronounce 
the  opinion,  upon  settled  rules 
and  guides,  whether  the  testator 
is  competent  or  not.  H>. 

6-  Upon  a  question  of  capacity,  an 
inquisition  of  lunacy  is  competent 
but  not  conclusive  evidence,  ib. 

7.  The  circumstances,  that  the  com- 
plainant, on  the  dissolution  of  the 
firm,   continued  the  business  on 
his  bwn   account ;  that  he  sold 
out  the  stock  on  hand  at  tiie  dis- 
solution,  in  the  course  of  this 
business;   that  the  complainant, 
after  the  dissolution,  said  that  the 
store  belonged  to  h:m  ;   and  that, 
from  the  manner  of  the  salo  of 
the  stock  on  hand,  it  was  mani- 
fest lie  never  could  account;    are 
not    sufficient    to    establish    the 
agreement,  that  on  the  dissolution 
of  the  partnership  the  complain- 
nant  was  to  pay  nil   the  debt*  of 
the  firm,  or  to  sustain  the  allega- 
tion of  the  answer.    Dickey  v. 
Allen,  40 


8.  The  allegation,  that  one  partner 
agreed  to  pay  all  the  debts  of  tho 
firm,  should  be  ck-urly  establish- 
ed, ib. 

9.  The  maker  of  a  promissory  note, 
is  a  competent  witness  to  prove 
it   usurious.     HoiMlF$  £/x'rt  v. 
Auten,  44 

•"0.  On  a  bill  filed  against  0.  and  B. 
as  partners,  the  declarations  of  C. 
are  not  admissible  against  B.  to 
prove  the  partnership.  The  de- 
claration of  one  partner  is  only 
admissible  against  the  other,  after 
the  fact  of  partnership  is  estab- 
lished. Flanagin  v.  Champion,  5  L 

11.  The  declarations  of  one  partner, 
made  after  the  dissolution  of  the 
partnership,  are  not  admissible  to 
charge  his  copartner.  ib. 

The  mere  opinions  of  witnesses, 
(other  than  the  testamentary,)  un- 
supported by  facts  are  entitled  to 
no  weight.  Lowe  v.  Williamson, 

82 

12.  A  husband  cannot  oe  a  witness 
for  his  wife  on  a  question  touch- 
her   separate    estate.       Trenton 
Banking  Co.  v.  Woodruff,      117 

'3.  Where  the  defendants  in  a 
cause,  by  their  answer,  set  up  a 
canceled  mortgage  as  a  su  bsist- 
ing  lien  upon  the  mortgaged  pre- 
mises mentioned  in  the  bill  of 
complaint,  it  is  incumbent  on 
them  to  show  that  the  money  was 
not  paid,  and  that  the  cancellation 
was  made  wrongfully.  The  com- 
plainants arc  not  bound  to  prove 
the  fact  of  payment.  ib. 

14.  The  admissions  of  a  party  on  a 
charge  of  adultery,  are  not,  us  a 
general  rule,  to  bo  received  with 
much  faith.  They  are  competent 
proof  of  the  charge  only  when 
connecied  with  otlier  evidence. 
Miller  v.  Miller.  18'J 


536 


INDEX. 


15,  It  is  not  necessary  that  it  shoulu 
be  positively  proved  that  a  con- 
fession of  guilt  by  the  wife  was 
raado  through  fear ;  it  may  be  in- 
ferred from  the  general  conduct 
of  her  husband  toward  her.  ib. 

1C.  Upon  a  bill  for  specific  perform- 
ance of  a  written  agreement,  it  is 
competent  for  the  defendant  to 
prove  parol  declarations  made  at 
the  time  of  the  contract,  though 
not  incorporated  in  the  agree- 
ment, in  order  to  rebut  tho  com- 
plainant's equity.  Miller  v. 
Chetwood,  199 

17.  The  admissibility  of  such  evi- 
dence depends  upon  the  purpose 
for  which  it  is  introduced.     It  is 
admissible  for  the  purpose  of  de- 
feating the  specific  performance, 
but  will  not  be  received  with  a 
view  to  having  the  contract  per- 
formed with  an  abatement  of  the 
price.  ib. 

18.  A  mere  trustee  may  always  be 
examined  as  a  witness  by  a  co- 
defendant.      If  it  turns  out  upon 
the  hearing  that  he  has  an  inter- 
est  in  the  cause,  his  testimony 
will  be  excluded.    Neville  v.  De- 
meritt,  321 

19.  The  admissibility  of  the    evi- 
dence depends  on  the   question, 
whether  the  witness  has  any  in- 
terest beyond    that  of    a  mere 
trustee.     If  he  has  any  individu- 
al concern  in  the  case,  the  evi- 
dence is  incompetent.  ib. 

20.  Tho  declaration,  by  a  witness, 
of  his  intention  to  pay  a  sum  of 
money    rather    than    the    party 
should  lose,  will  not  render  the 
witness  incompetent,  unless  he  be 
legally  responsible  for  the  money. 

ib. 

l\.  The  obligor  of  a  bond  will  not 
be  admitted  to  prove  by  parol, 


that,  at  the  time  of  giving  tho 
bond,  it  was  agreed  that  tho 
obligee  should  look  to  another 
source  for  payment,  and  that  tho 
obligor  should  not  bo  personally 
liable.  Chetwood  v.  Britan,  43 8 

22.  Whatever  the  contracting  par- 
ties reduce  to  writing,   must  bo 
considered  as   embodying    their 
understanding  at  that  time.     If 
by  fraud,  or  mistake,  or  accident, 
the  paper  should  not  contain  tho 
true   agreement    or    the    whole 
agreement,  it  may  be  supplied  by 
parol.  ib. 

23.  Evidence  will  not  be  admitted 
of  what  took  place  at  the  time  of 
executing  a  written  agreement, 
to  add  to  or  vary  the  contract.  A 
written     agreement     cannot    bo 
varied  by  parol  evidence,  unless 
in  cases  where  there  is  a  clear 
subsequent      and      independent 
agreement,  varying  the  former,  ib. 

24.  But  it  seems  that  the  objection 
to  varying  a  written  agreement 
by  parol,   rests    merely    on  the 
rules  of  evidence.  If  a  defendant, 
by  his  answer,  admits  the  charge 
in  the  bill,  that    at  tho  time  of 
executing  a  bond,  it  was  verbally 
agreed     that   the     complainant 
should  not  be  personally  liable  for 
tho  money,  will  not  equity  give 
relief  against  a  recovery  on  the 
bond  ? — Qu.  ib. 

25.  Proof  that  part  of  a  loan  was 
advanced  in  goods  or  stock,  will 
not  throw   on  tho  opposite  party 
the  burthen  of  proving  the  va- 
lue   of    such    goods    or    stock. 
The  person  charging   tho  usury 
must  prove,   not  only  that  tha 
goods  or  stock  constituted  part  of 
tho  loan,  but  also  that  they  were 
put   off  at  a  price  beyond  tlich 
value.     Gromcnor  v.    Flax  and 
Hemp  Manufacturing  Co.        453 


INDEX. 


537 


EXCEPTIONS. 
Vide  PRACTICE  IV. 
EXECUTION   CREDITOR. 
Vide  DEBTOB  AND  CKEDITOE. 
EXECUTORS   AND   ADMINIS- 
TRATORS. 

1 .  Tho  decree  of  the  orphan's  court 
upon  a  joint  account  rendered  by 
executors,  admitting  the  account 
to  settlement,   docs  not   change 
the  joint  liability  of  the  executors. 
They  are  jointly  liable  before  as 
well  as  after  the  decree.  Goble  v. 
Andruss,  66 

2.  A  settlement    in    the    orphan's 
court  by  two  executors,  and  a 
decree  establishing  the  amount 
in  their  hands,  are  not  conclusive 
that  each   executor,  at  the  time, 
had  half  of  the  estate.  -ib. 

8.  Such  decree  only  ascertains  the 
amount  due,  leaving  the  liability 
the  same  as  before,  joint,  and 
leaving  wholly  undetermined  and 
open  as  between  the  parties  them- 
selves, what  part  of  the  estate 
each  executor  had.  ib. 

4.  The  condition  of  an  administra- 
tion bond,  under  the  statute  of 
New-Jersey,  is  not  restricted 
merely  to  the  rendering  of  an  ac- 
count, but  is  designed  to  secure  a 
faithful  administration '  of  the 
estate.  Hasten  v.  Durling's 
adm'r,  133 

.  It  is  a  part  of  the  condition  of 
such  a  bond,  that  the  administra- 
tor shall  faithfully  apply  the  as- 
sets to  the  payment  of  the  debts; 
and  the  non-payment  of  a  judg- 
ment obtained  against  the  admin- 
istrators may  be  assigned  aa  a 
breach  of  the  condition.  ib. 

6.  After  the  return  of  nullo  bona 
upon  an  execution  aguiost  the 


administrators,  the  administration 
bond  is  forfeited,  and  the  surety 
has  a  right  to  satisfy  the  execution 
with  or  without  suit  upon  the 
bond.  jj. 

7.  Such  payment  is  not  voluntary, 
and  the  party  making  it  may  re- 
cover it  back  from  the  party  for 
whose  benefit  it  was  made.      ib. 

8.  A  surety  in  an   administration 
bond,   having  satisfied  an  execu- 
tion against  the  estate  of  the  in- 
testate, becomes  a  creditor  of  the 
administrators  in  their  own  right, 
having  paid  money  for  their  joint 
account.      His  remedies  against 
them  should  be  exhausted,  before 
this  court  can  interfere  in  his  be- 
half to  reach  the  assets  of  the 
intestate.  »J. 

9.  Where  a  testator  by  his  will  de- 
vises all  his  real    and  personal 
estate  to  nine  persons,  named   in 
the  will,  in  trust  for  the  purposes 
therein  expressed,  and  appoints 
the  same  persons  by  name  execu- 
tors,   with  full   power   to  them 
and  to  a  majority  of  them,  and 
to  a  majority  of  the  survivors  of 
them,  to  sell  his  lands  and  to  exe- 
cute deeds  for  all  lands  contract- 
ed to  be  sold  by  the  testator  in 
his  life  time  ;  if  one  of  the  execu- 
tors dies  in  the  life  time  of  the 
testator,  and  all  the  others  except 
one  refuse  to  act,  the  acting  exe- 
cutor is    authorized    under    the 
statutes  ot  New-Jersey  to  convey 
the  land.    Coykendall  v.  Ruther- 
ford's ex'x,  860 

10.  The  jurisdiction   of  a  court  of 
chancery  over  the  settlement  of 
accounts  of  executors  and  admin- 
istrators, is  too  well  established 
at  this  driy  to  admit  of  question. 
Salter  v.  Williamson,  480 

11.  The  authority  conferred  by  sta- 
tute upon  the  orphan's  court,  in 


538 


INDEX. 


relation  to  the  settlement  of  ac- 
count's of  executors  and  admin- 
istrators, was  only  a  cumulative 
remedy  afforded  to  parties,  and 
•was  never  intended  to  deprive 
the  court  of  chancery  of  its  juris- 
diction, ib. 

12.  The  court  of  chancery  and  the 
orphan's  court  have  on  this  sub- 
ject a  concurrent  jurisdiction,  ib. 

13.  Where   there   are    no   special 
reasons  for  going  into  equity,  the 
orphan's  court  is  the  proper  tribu- 
nal, and  should  be  selected  by  all 
parties  for  settling  the  accounts 
of  executors    and    administra- 
tors, ib. 

14.  The  fact  that  an  executor  or 
administrator  has    exhibited  his 
account  in  the  orphan's  court, 
and  that  steps  have  been  taken 
towards  a  find  settlement  of  the 
account  in  that  court,  will  not  de- 
prive the  court  of  chancery  of  its 
jurisdiction    over    tho    account. 
Until  the  final  decree  of  the  or- 
phan's court,  there  is  no  legal  im- 
pediment to  prevent  the  court  of 
chancery  taking  cognizance  of  the 
case.  ib. 

15.  But  where  an  account  has  been 
exhibited  in  the  orphan's  court, 
and  especially  if  considerable  ad- 
vance has  been  made  towards  the 
adjustment  of  the  account,  a  court 
of  equity  will  not  interfere  unless 
there  exist  some  substantial  reason 
for  invoking  its  aid.  ib. 

Vide  ACCOUNT.    PLEADING,  I.  6. 
HUSBAND  AND  WIFE,  6,  7. 

F. 

FEIGNED  ISSUE. 

Vide   ISSUE. 

FEME  COVERT. 

Vide  HUSBAND  AND  WIFE. 


FRAUD. 

1.  On  a  proceeding  against  a  com- 
pany, under  the  sixth  section  of 
the  act  entitled  "An  act  to  pre- 
vent frauds  by  incorporated  com- 
panies," passed  February  16th, 
1829,  the  great  and  primary  fact 
to  be  ascertained,  is  the  insolven- 
cy of  the  company.  That  lays  at 
the  foundation  of  the  whole  pro- 
ceeding, and  unless  satisfactorily 
made  out,  the  court  has  no  right 
to  interpose.  Oakley  v.  Pater  - 

173 


2.  The  provisions  of  tho  seventh 
section  of  the  act,   are  not  to  be 
understood     as    restricting     the 
court  to  any  particular  mode  of 
proof  in  ascertaining  the  insol- 
vency of  a  bank,  but  as  super- 
adding  certain   tests  which  shall 
in  all  cases  constitute  full  evidence 
of  such  insolvency.  ib. 

i 

3.  A  bank  may   be  insolvent,  with- 
out any  of  the  events  happening 
which  are  stated  in  tho  seventh 
section  of  tho  act;   and  although 
some  of  those  marks  ol'insolvency 
may  have  occurred,  yet  the  bank 
muy,  upon  further  proof,  be  shown 
to  be  sound  and  safe.  ib. 

4.  The  court  may  act  upon  the  tests 
given  in  this  section,  or  they  may 
go  further  and  look  beyond  them, 
if  they  see  reason  to  do  so,  in 
coming  to  a  satisfactory  conclu- 
sion as  to  tho  solvency  or  insol- 
vency of  the  company.  ib. 

5.  A  bank  without  funds  for  the 
redemption  of  its  notes,  and  de- 
pending on  individual  resources 
and  exertions  to  provide   funds 
for  the  redemption  of  its  notes, 
rather  than  upon  the  immediate 
ability  of  the  institution  itself,  is 
insolvent  within  tho  true  intent 
and  meaning  of  tho  act.  ib. 


INDEX. 


639 


C.  The  act  requires  that  the  hank 
should  he  at  all  times  prepared  to 
discharge  all  demands  presented 
for  payment ;  and  it  can  never  be 
freed  from  the  charge  of  insolven- 
cy upon  any  supposed  ability  of 
realizing  from  its  means  enough 
to  pay  its  debts  at  a  future 
day.  ib. 

Y.  The  court  will  refuse  its  aid, 
not  merely  to  a  party  who  frau- 
dulently misrepresents  his  title, 
but  also  to  one  who  remains  si- 
lent when  duty,  candor  and  fair 
dealing  require  liim  to  speak  out. 
£oss  v.  Elizabeth-Town  and,  Som- 
ervillo  Railroad  Co.  422 

Vide  DEED,  4.  HUSBAND  AND 
WIFE,  3,  4. 

G. 

GUARDIAN  AND  WARD. 

1.  "Where  the  real  estate  of  an  infant 
is  sold  by  the  guardian,  (by  virtue 
of  an  act  of  the  legislature,)  the 
guardian,  or  her  representatives, 
may  retain  so  much  of  the  money 
arising  from  the  sale,  to  satisfy 
n  claim  of  the  guardian  in  her  own 
right,  as  the  land  would  have  been 
liable  for  in  case  it  had  not  been 
sold.    SnowhilVt  Heir's  v.  Snow- 
JiiWs  Ex'rs,  80 

2.  By  the  twenty-eighth  section  of 
the  act  of  the  13th  of  June,  1820, 
(Itev.  Laws,  784,)    the  mother  or 
next  of  kin  are  given  a  clear  pre- 
ference,  and  are  entitled,  if  they 
desire  it,    to  the  appointment  of 
guardian  for  minors  under  four- 
teen years  of  age,  and  cannot  be 
passed  by  except  upon  some  satis- 
factory objection  made  and  sus- 
tained before  the  court.    Itcadv. 
Drake,  IS 

.Vide  HEIR. 


H. 

HEIR 

When  an  act  of  the  legislature 
authorizes  a  guardian  to  make 
sale  of  the  real  estate  of  his  ward, 
and  directs  tha  proceeds  out  of 
the  sale  to  be  put  at  interest  for 
the  benefit  of  the  ward,  without 
making  any  provision  for  the 
disposition  of  the  fimJ  in  the 
event  of  the  infant's  deatli  ;  upon 
the  death  of  the  infant,  intestate, 
the  proceeds  of  such  sale  will  po 
to  his  heirs  at  law,  pursuant  to  tho 
statute  regulating  the  descent  of 
real  estate,  and  net  to  his  next  of 
kin.  SnowhilVa  Rein  v.  Snow- 
Mlft  Ex'rs,  ,  30 

Vide  ASSIGNMENT  AND  ASSIGNEE,  1  . 

WILL.  5,  6. 
HUSBAND  AND  WIFE 

1.  The  choses  in  action  of  the  wife 
survive  to  her  on  the  death  of 
her  husband,  unless  he  reduce 
them  into  possession  during  his 
life.  SnowhilPs  Heirs  v.  Snow- 
hill's  Etfri  80 


2.  What  will  constitute  a  reducing 
of  a  chose  in  action  of  the  wi:'e 
into  possession,  so  as  to  deprive 
her  of  the  claim  as  survivor?  — 
Qu.  ib. 

3.  Where  a  bond  and  mortgage  are 
bequeathed  to  a  feme  covert,  for 
her  use,   free  from  the  debts  or 
control  of  her  husband,   and  the 
husband  of  the  legatee,  being  the 
obligor  in  tho   bond,  and  also  an 
executor  in  tho  will,  cancels  suc'.i 
bond  and  mortgage  without  pay- 
ing tho  same,  such  cancellation  is 
a  gross  fraud,   not  only  upon  the 
estate  committed  to  his  charge, 
but  also  upon  the  rights  of  tho 
wife,  against  the  effects  of  which 
this  court  will  interfere  for  her 
protection.    But  it  seems  that  in 


540 


INDEX. 


such  case,  when  the  testator  had 
by  the  very  act  of  constituting 
his  debtor  an  executor,  placed  it 
in  liis  power  to  practice  a  fraud 
upon  innocent  parties,  the  court 
would  nuc  interpose  to  protect 
the  rights  of  a  wife,  by  establish- 
ing the  cancelled  mortgage,  to  the 
prejudice  of  subsequent  mortga- 
gees without  notice.  Trenton 
Banking  Co.  v.  Woodruff.  117 

4.  It   is  one  of  the   plainest    and 
most  common  grounds  of  equity 
jurisdiction,    to    guard    innocent 
parties,    and  especially     married 
women  and  infants  against  fraud 
and  imposition.     Sucli  protection 
•will  bo  afforded  to  a  married  wo- 
man against  her  husband.          i&. 

5.  The  rule  is  now  well  settled  that 
a  trust,  either  of  real  or  personal 
estate,  may  he  created  by  a  direct 
gilt  or   bequest  to  the  use  of  the 
wife,  without  the  intervention  of 
trustees,  so  as  to  prevent  the  hus- 
band's   enjoyment  of  tie  estate; 
and  equity  wi  1  sustain  such  trust, 
and  declare  the  husband  a.  mere 
trustee  for  the  use  of  the  wife.  ib. 

6.  On   the  death  of  the   wife   the 
husband  may  administer  on  her 
estate,  and  in  that  character  take 
to  himself  lor  his    own   benefit 
jure  mareti.  all  herpersonal  pro- 
perty ;  and  in  caso  lie  dies  before 
ho  shall  have  fully  administered 
on  sucli  estate,  his  representatives 
are    entitled    to     the    property. 
Donnington'1*  adrn'r  v.  Mitchell's 
adm'x,  243 

V.  It  letters  of  administration  upon 
the  wife's  estate  aro  granted  to 
the  next  of  kin  of  the  wite,  they 
are  deemed  as  trustees  only  lor 
the  representatives  of  the  hus- 
band, ib. 


8.  When  the  property   of  the  wife 


by  marriage  agreement,  executed 
before  the  marriage  is  conveyed 
to  trustees,  and  no  disposition  is 
made  of  the  property  in  the  event 
of  tho  wife's  death  before  the 
husband — upon  tho  death  of  tho 
wife  the  property  will  go  to  her 
husband.  ib. 

9.  Tho  rights  of  the  husband  aro 
not  suffered  to  bo  taken  away  un- 
le-s  by  express  terms,  and  his 
rights  are  as  complete  ia  proper- 
ty placed  in  trust  as  in  any 
other.  «j. 


10.  The    cho?es  in    action   of  the 
wife,  whether  acquire!  before  or 
during  tho  coverture,  notieduced 
into  possession  by  the  husband, 
survive  to  the  wife.  Dare's 
adm'rs  v.  Attends  ex"r,  415 

11.  If  the  husband,  before  marriage, 
make  a  settlement  on  his  wife  in 
consideration  of  her  fortune,  he 
will  he  considered  in    equity  as 
the  purchaser  of  her  fortune,  and 
her  choses  in  action,  though  not 
reduced  into  possession   by    her 
husband,  will  go  to  his  represen- 
tatives, ib 

Vide  EVIDENCE,  12.    MORTGAGE,  I. 

10.  ASSIGNMENT  AND  ASSIGNEE, 

2,  8.    LEGACY,  5. 

I. 

INFANT. 

Vide  GUARDIAN  AND  WARD.    IlEIR. 

INJUNCTION. 

I.  It  is  requisite  that  the  party  ob- 
taining an  injunction  use  due  di- 
ligence in  expediting  his  cause; 
and  if  the  compUinaut  is  guilty 
of  gross  neglect  in  proceeding 
with  his  suit,  tbo  injunction  will 
bo  dissolved,  Corey  v.  Voor- 
hccs,  5 


INDEX. 


541 


2.  It  is  no  ground  for  the  dissolution 
o!' nn  injunction,  tlrat  the  subpoe- 
na could  not  be  served  ;  nor,  that 
tlie  injunction  itself  was  served 
illegally,  or  without  the  jurisdic- 
tion of  the  court.  «ft. 

8  Whether  an  injunction  ought  to 
issue  upon  a  bill  for  an  account 
of  the  partnership,  to  restrain  the 
Fheriff,  upon  an  execution  at  law 
against  one  of  the  partners,  from 
selling  the  partnership  property? 
—  Qa.  Gamiivick  v  Johnson,  163 

4.  The  power  of  dissolving  injunc- 
tions, as  well  as  of  granting  them, 
must  necessarily  rest  much  in  the 
discretion  ofthe  court,  and  should 
l>e  exercised  in  such  way  as  to 
prevent  the  restraints  hy  injunc- 
tion from  working  unnecessary 
delay  and  injustice  to  parties,  ib. 

5  A  technical  denial  of  the  com- 
plainant's bill  will  not  in  all  cases 
dissolve  the  injunction :  that  must 
rest  in  the  sound  discretion  of 
the  court,  and  depend  on  the  pe- 
culiar character  and  circumstances 
of  each  case.  Mcrwin  v.  Smith, 

182 

6.  "Where  the  complainant  omits  to 
have  the  subpoena  served  and  re- 
turned at  the  term  to  which  it  is 
made  returnable,  the  injunction 
will  be  dissolved.   West  v.  Smith, 

809 

7.  Where    tho    defendant   against 
whom     the     gravamen    of     the 
chargo  rests  has  fully  answered 
the  complainant's  bill,  the  injunc- 
tion will  be  dissolved,  although 
other  defendants  have  not    an- 
swered.  Vliet  v.  Lowmaton,  404 

8.  Where  the  charter  of  a  railroad 
company  authorizes  the  construc- 
tion of  the   road,  but  provides 
that  u  payment  or  tender  of  pay- 
ment of  all  damages  for  the  occu- 
pancy of  lands  through  which  the 


road  may  be  laid  out,  shall  be 
made  before  the  company  shall 
enter  upon  or  break  ground  in 
the  premises,  except  for  the  pur- 
pose of  surveying  and  laying  out 
the  road,  unless  the  consent  of 
tho  owner  or  owners  of  such  lands 
be  first  had  and  obtained  ;''  if  the 
company  enter  upon  any  land  in 
violation  of  such  provi<ion,  for 
the  purpose  of  constructing  their 
road,  without  payment  or  tender 
of  damages,  and  without  the  con- 
sent of  the  owner,  it  affords  n 
clear  case  for  the  interference  of 
a  court  of  equity  by  injunction. 
Boss  v.  Elizabeth-  Town  and  Som- 
eroille  Railroad  Go.  422 

9.  In  such  cases  it  is  proper  to  re- 
quire notice  of  application  for  the 
injunction  to  be  given,  wherever 
it  can  be  done  and  save  the  com- 
plainant from  the  injury  which 
he  seeks  to  avert.  ib, 

10.  The  operations  of  a  company  in 
the  construction  of  a  great  work 
of  public  convenience,  should  not 
be  suddenly  arrested  without  no- 
tice, unless  in  a  case  of  urgent  and 
pressing  necessity;     yet,   where 
the  complainants  cannot  be  other- 
wise secured  in  their  rights,  nn 
ex  partt  order  for  an  injunction 
will  bo  granted.  *'&. 

11.  The  continuance  of  an  injunction 
must  always  rest  in  discretion, 
not  arbitrary,  but  controlled  by 
established  rules.      The  equity  of 
the  bill  may  be  answered,   and 
yet  thecourtwill  continue  the  in- 
junction to  tho  hearing,  especial- 
ly if  the  dissolution  would  work 
a  greater  injury  than  a  continu- 
ance of  the  process.      Ghetwood 
v.  Brittan,  4C9 


12.  Injunction 
terms. 


continued 


542 


IHDEX. 


Vide    DEBTOR  AND    CREDITOR,   3. 
KTIISANCE,  1,  2,  5.    PRACTICE, 
JI.  7,  10,  13;   III.  16—19. 
PARTNERS,  3.     VEN» 
DOB    AND    PUB- 
CHASER,   7. 

ISSUE. 

1.  The  awarding  of  an  issue  rests  in 
the  sound  discretion  of  the  court, 
and  the  power  should  be  sparing- 
ly  exercised.     Trenton  Banking 
Co.  v.  Woodruff,  117 

2.  The  object  of  an  issue  at  law  is 
to  inform  the  conscience  of  the 
court;  and  if  the  court  can  be 
satisfied  that  substantial  justice 
has  taken  place,  the  verdict  will 
not  be  disturbed  on  mere  techni- 
cal grounds.     Bassett  v.  Johnson, 

154 

3.  The  judge  before  whom  the  issue 
is  tried,  should  not  only  return 
the  postea,   but  go  further,  and 
furnish  to  this  court  a  fair  state- 
ment of  tho  trial.     His  certificate 
has  always  its  weight.  ib. 

4.  Tt  is  not  necessary  that  the  re- 
port of  the  judge  should  state  the 
evidence  and  give  a  tninuto  histo- 
ry of  the  trial.      All  that  can  be 
n quired  of  him  is,  that  he  state 
tho  general  character  of  tho  evi- 
dence offered,  the  part  objected  to, 
and  the  decision  made  upon  those 
objections,  with  his  charge  to  the 
jury.  ib. 

6.  If  nny  difficulty  exist  in  relation 
to  the  report  of  tho  judge,  the 
court  will  not  for  his  cause  alone 
grant  a  new  trial,  but  will  call  on 
the  judge  for  an  additional  report 
of  ihe  case.  i&. 

6.  Where  the  issue  to  bo  determined 
is.  whether  the  erection  of  a  cer- 


tain dam  "  has  seriously  and  per- 
manently affected  and  injured 
the  meadows  of  the  complainants 
lying  above  it,"  it  is  not  compe- 
tent on  the  trial  for  the  defendant 
to  prove  that  if  the  dam  were 
completed,  the  injury  complained 
of  would  be  remedied,  ib. 

7.  Upon  a  motion  for  a  new  trial  of 
an  issue  at  law,  it  cannot  be  ob- 
jected that  the  issue  formed  is  not 
broad  enough,  arid  that  other  in- 
quires ought  to  have  been  involv- 
ed in  it.  ib. 

8.  An  injury  may  be  permanent, 
in  the  sense   of  the  term  used  in 
the  issue,  without  continuing  for 
ever.  ib. 

9.  On  a  motion  for  a  new  trial,  tho 
defendant's  cannot  complain  that 
the  issue  was  tried  by  the  justice 
before  whom  the  jury  wa.s  struck, 
if  they  permitted  the  jury  to  be 
struck  and   the  trial   to  bo  had 
without  objection.  ib. 

10.  When  the  amount  in  controver- 
sy it  small,   and  tho  facts  can  be 
satisfactorily  ascertained  in  this 
court,  an  issue  at  law  will  not  bo 
awarded.     Garwood  v.  Eldridgc's 
Jieirs,  290 

11.  Where  an  issue  is  awarded  by 
the  court  of  chancery,  to  be  made 
up  in    the  supreme    court,   tho 
transcript  and  postea  must  be  re- 
turned to  the  court  awarding  tho 
issue,    and  not  to  tho  supreme 
court.     Trenton  Banking  Co.  v. 
Rossell,  492 

12.  On  motion  for  a  now  trial  of  an 
issue  at  law,  the  state  of  the  case 
and  history  of  the  trial,  ordered  to 
be  prepared   by   the  solicitor  of 
the  party  applying  for  the  rule, 
and  submitted  to  the  solicitor  of 
the  adverse  party  for  his  exami- 
nation, and  in  case  the  solicitors 


IKDEX. 


543 


are  unable  to  agree,  the  case  to 
bo  settled  by  the  judge  before 
whom  the  issue  was  tried.  ib. 

1  >.  A  new  trial  of  an  issue  directed 
by  this  court  will  not  be  granted, 
merely  because  on  the  former 
tri:il  the  judge  misdirected  the 
jury,  if  upon  the  whole  evidence 
tlio  court  is  satisfied  that  the  ver- 
dict is  right.  Trenton  Banking 
Co.  v.  Rossell,  611 

JUDGMENT  AT  LAW. 
This  court  will  not  sustain  an  ex- 
ception to  a  judgment  at  -law  on 
the  ground  of  irregularity.    Cam- 
mack  v.  Johnson,  163 
ViJe   DEBTOR  &  CREDITOR,   1,   2. 
VENDOI:  &  PURCHASER,  4-7. 
JUDGMENT  CREDITOR. 
Vido  DEBTOR  and  CREDITOR.   VEX- 
DOR  fend  PURCHASER,  4-7. 

J. 

JUPylSDICTION  (OF  CHAN- 
CERY.) 

1.  It  is  settled  at  this  day,  that  the 
courts  of  law  and  equity  hold  a 
concurrent  jurisdiction  in  relation 
to  dower  and  partition;  and  in  ma- 
ny cases  there  is  an  indispensible 
necessity  for  the  exercise  of  this 
jurisdiction  by  a  court  of  equity. 
If  thelegal  title  of  the  complainant 
be  denied,  if,  is  in  the  power  of 
the  court  to  send  that  question  to 
be  tried  at  law,  and  such  is  the 
universal   practice.     Hartshorne 
v.  Hartshorne,  849 

2.  A  court  of  equity  will,  to  effect- 
uate justice,  settle  unliquidated 
damages    Costirv.  Monroe  Manu- 
facturing Co.  467 

Vide  EXECUTORS  AND  ADMINISTRA- 
TORS, 10,  11,12,  14.— HUSBAND 
AND  WIFE,  4.    LANTLOBD 
AND   TKNANT,     1,    8. 
PARTITION.  SHER- 
IFF'S SA.I.R,  9 
Will   I. 


I* 

LANDLORD  AND  TENANT. 

1.  Upon   a  bill  for  the  specific  per- 
formance of  an  agreement  contain- 
ed in  a  lease,  that  at  tho  expira- 
tion of  the  term,   the  improve- 
ments made  on  the  demised  pre- 
mises by  the  lessee,  shall  remain 
the  property  ot'the  lessor  on  mak- 
ing the  lessee  a  fair  compensation 
for  the  same ;   tho  court  will  en- 
tertain  jurisdiction   though   the 
bill   be  purely  for  compensation 
and  damages,  provided  n  specific 
performance  may  be  decreed,  and 
the  complainant  can   have  ade- 
quate relief  only  in  equity.  Perry 
v.  Van  Winkle's  «rV«,    '         2G9 

2.  The    charge    for   improvements 
made  upon  the  property  by  the 
lessee,  tinder  the  terms  of  such  an 
agreement,  is  in  equity  n  lien  on 
the  property.  i'J. 

8.  The  court  will  not  extend  its 
jurisdiction  beyond  the  claim  of 
the  lessee  for  compensation  for 
valuable  and  permanent  improve- 
ments put  by  him  upon  the  de- 
mised premises,  and  which  pass 
to  the  lessor  at  the  expiration  of 
his  term;  and  will  not  suffer  a 
claim  for  alleged  infringements  of 
the  rights,  of  the  lessee  during 
his  term,  to  be  drawn  in  ques- 
tion, to. 

4.  Where  by  tho  terms  of  ft  lease  it 
was  agreed  that  the  lessee  should 
make  improvements  on  the  de- 
mised premises,  at  his  own  costs 
and  charges,  and  that  at  the  ex- 
piration of  the  term  all  the  im- 
provements BO  made  should  be 
and  remain  the  property  of  the 
lessor,  he  paying  to  the  lessee  the 
value  thereof— the  improvements 
are  to  be  valued  as  they  were  At 
the  time  tho  lease  expired.  Berry 
y.  Van  Winkle1 1  t^rt,  890 


INDEX. 


6.  If  the  lessor  covenant  that  the 
lessee  may,  at  any  time  during 
the  term,  erect  a  carding  and  full- 
ing mill,  and  any  other  machine- 
ry, upon  the  demised  premises, 
and  that  at  the  expiration  of  the 
term  {ill  improvements  made  upon 
the  lot  shall  be  the  property  of 
the  lessor,  he  paying  for  the 
same;  the  improvements  to  be 
paid  for  by  the  landlord  are  such 
only  as  he  had  previously  author- 
ized to  be  made.  ib. 

Vide  MORTGAGE,  I.  11.; 

LEASE. 

Yide  LANDLOBD  AND  TENANT. 
LEGACY. 

1.  A  legacy  will  be  presumed  to  be 
a  satisfaction  of  a  detnand  against 
the  testator,  where  there  are  no 
circumstances  showing  a  different 
intention.      Van  Riper  v.    Van 
Hiper's  ex'rs,  1 

2.  The  general  rule,  that  a  legacy 
will  be  deemed  a  satisfaction  of  a 
debt  due  from  the  testator  to  the 
legatee,   is  not   favored,  and  ap- 
plies only  where  no  presumption 
to  the  contrary    can   be  drawn 
from  the  face  of  the  will.          ib. 

3.  Where  the  testator  by  his  will 
directs  the  executors  "to  pay  all 
his  just  debts  ;  "   where  the  lega- 
cy is  payable  when  the  legatee 
arrives  at  age,   and    whero  the 
debt  to  in  a  measure  unliquidated, 
the  legacy  is  no  satisfaction  of 
the  debt.  ib. 

4.  A  present  debt  can  never  be  sat- 
isfied by  a  contingent  legacy,  ib, 

5.  A  legacy  to  a  married  woman  is 
a  chose  in  action,  and  governed 
by  tha  same  rule  (as  to  survivor- 
s'.iip)  ns  all  other  choses  in  action. 
SiowkiWa    heirs    v.    SnowkiU't 

30 


Vi  lo   HUSBAND  AND   WIFB,  3. 


LESSOR  AND  LESSEE. 

Vide  LANDLORD  AND  TENANT. 

LIMITATIONS— STATUTE  OF. 

Vide  TBTJST  AND  TKUSTEE,  3. 

M. 

MASTER—  REFERENCE  TO,  &c. 
Vide  PBACTIOE,  IV. 

MISTAKE. 

1  It  is  a  well  settled  general  prin- 
ciple, that  equity  wil  not  relieve 
from  the  consequence  of  an  act 
fairly  done  on  a  full  knowledge 
of  the  facts,  though  under  a  mis- 
take of  the  law.  Ignorantia  legit 
neminem  excusat,  is  the  general 
rule  as  well  in  equity  as  at  law. 
Garwood  v.  JEl-dridge's  heirs,  145 

2.  But  where  a  mistake  nas  taken 
place  in  the  facts  as  well  as  the 
law,  or  where  seme  suppression 
of  the  truth,  fraud  or  contrivance 
has  been  practised,  equity    will 
interfere.  ib. 

3.  It  is  among  the  first  principles  of 
a  court  of  equity  to  correct  mis- 
takes and  to  prevent  parties  being 
injured  in  their  property,  and  es- 
pecially in  their  freehold,  by  any 
misapprehension  or  concealment 
of  material  circumstances.  Read '& 
adirfrs  v.  Cramer,  277 

4.  Where    a  deed    was    delivered 
through  mistake  before  the  whole 
of  the  purchase  money  was  paid 
or  secured,  the  grantor  was  per- 
mitted to  protect  himself  ngainbt 
the    effects  of  the  mistake,    l>> 
keeping  alive,  in  the  hinds  of  a 
trustee,  an  incumbranco   on  the 
premises  created  by  himselt  be- 
fore the  sale,  although  tlio  deed 
contained    covenants  of  general 
warranty,  and  Jigniiist  all  incum- 
brances.  Neville  v.  Dctneritt,ZZ\ 


INDEX. 


645 


MORTGAGE. 

I.   Of  the  Mortgage  generally.     II. 

Cancellation  of  Mortgage    III. 

Equity   of  Redemption, 

foreclosure  and  Sale. 

I.  Of  the  Mortgage  generally. 

1.  S.  G.    having  purchased  of  the 
owner  of  certain  real  estate,  sub- 
ject to  two  mortgages  and  a  judg- 
ment, applied  the  whole  of  the 
purchase  money  to  the  satisfac- 
tion of  the  mortgages,  being  the 
first  incumbrances,   and    caused 
them  to  be  cancelled    and  dis- 
charged of  record.     Held,  that  a 
purchaser  under  the  judgment, 
took  the  property  clear  of  the  in- 
cumbrances   of  'the    mortgages, 
and  that  S.  G.  was  entitled  to  no 
relief  in  equity.     Gancood  v.  El- 
dridge's  adni*r«,  145 

2.  The  person  pay  ing  off  a  mortgage 
can  be  substituted  in  the  place  of 
the  mortgagee,  only,   where  the 

.  mortgage  is  taken  up  by  a  third 
person,  and  not  where  it  is  satis- 
fied by  the  mortgagor  himself.  ib. 

8.  When  an  absolute  deed  is  ex- 
ecuted, and  by  a  different  instru- 
ment the  grantee  agrees  to  re- 
convey  to  the  grantor,  upon  the 
payment  of  a  stipulated  sum  with- 
in a  limited  period,  it  is  a  ques- 
tion of  intention-  whether  the 
transaction,  constitutes  a  mortgage 
or  a  conditional  sole.  Crane  v, 
Bonncll,  264 

4.  To  ascertain  the  intention  of  the 
parties,  and  to  aid  in  the  fair  con- 
struction of  the  instrument,  the 
circumstances  attending  the 
transaction  may  be  resorted  to. 

ib. 

6.  If  by  the  transaction  the  parties 
designed  to  create  a  mortgage, 
the  time  fixed  for  redemption  is 
immaterial.  If  once  a  mortgage, 
it  is  always  a  mortgage.  ib. 


6.  But  if  the  transaction  was  intend- 
ed as  a  sale,  with  an  agreement, 
for  a  repurchase  within  a  given 
time,  then  that  time  is  material. 

ib. 

7.  If  it  be  doubtful   whether  the 
particular  transaction  constituted 
a  mortgage  or  a  conditional  sale, 
equity  regards  it  as  a  mortgage. 

ib. 

8.  The  same  rule  obtains,  though 
the  defeasance  rests  in  parol.   ib. 

9.  If  the  defeazance  be  made- at  a 
subsequent   day,  it    will   relate 
back  to  the  date  of  the  deed.    ib. 

10.  If  the  husband  before  marriage, 
or  in  conjunction   with  the  wife 
after  marriage,  execute  a  mort- 
gage, the  widow  can  only  have 
her  dower  subject  to  such  mort- 
gage ;  and   if  the  mortgage    be 
foreclosed  and  a  sale  made,  the 
widow's  rights  nrc  barred  except 
as  to  the  surplus  after  satisfying 
the    mortgage.      Hartthornt  v. 
Ifartshorne,  349 

11.  Where  a  lease  is  made  by  the 
mortgagor    subsequent    to     ihe> 
mortgage,  the  mortgagee  is  not. 
entitled  to  an  account  in  equity 
against  the  tenant  for  the  rents.. 
Price  v.  Smith*  516. 

15.  Where,  a  lost  mortgage  nas  been, 
established,  by  a  decree  of  the 
court,,  as  a  valid  and  subs&iug: 
incnmbrance,  the  subsequent, 
finding  of  the  mortgage  in  thei 
hands  of  a  third  person,,  cancel- 
led, without  further  evi>lence,wili 
not  vary  the  case,  nor  induce  tlio 
court  to  alter  the  decree.  Lilly 
T.  Quick,  91 

13.  It  is  a  role  in  equity  that  an  in- 
cumbrance  shall  be  kept  alive  or 
considered  extinguished,  aa  will 
most  advance  the  justice  of  the 
ease.  Neville  v.  Demeritt,  821 


J4G 


INDEX. 


II.   Cancellation. 

1 4.  Tearing  off  the  seals  of  a  mort- 
gage, or  even  its   entire   destriic* 
tioti  by  an   unauthorized  pei'son, 

will  not  cancel  it.  It  must  be 
cancelled  by  consent  of  the  own- 
er. Lilly  v.  Quick,  97 

15.  The  cancellation  of  a  mortgage 
on  the  record,  is  only  prima  facie 
evidence   of   its  discharge,    and 
leaves  it  open  to  the  party  mak- 
ing such  allegation,  to  prove  that 
it  was  made  by  accident,  mistake 
or  fraud.     Trenton  Banking  Co. 
v.  Woodruff,  117 

16.  On  such  proof  being  made,  the 
mortgage     will    be    established, 
even  against  subsequent  mortga- 
gees without  notice.  ib. 

17.  A  cancellation  of  a  mortgage, 
and  a  discharge  of  record,  unless 
effected  through  fraud,  accident 
or  mistake,  is  an  absolute  bar  and 
discharge  of  the  mortgage.    Gar- 
wood  v.  Eldridges  admlrs%      145 

18.  "Where  a  mortgagee  intention- 
ally and  understaudingly  cancels 
his  mortgage,  and  in  lieu  thereof 
takes  a  deed  for  the  same  prem- 
ise?, and  the  mortgagor  executes 
a  second    mortgage    upon    the 
premises  prior  to  the  deed,  the 
first  mortgage,  in  the  absence  of 
fraud,  will  not    be  revived,  nor 
the  second  mortgagee   prevented 
from  reaping  the   benefit  of  his 
priority  acquired  by  the  cancella- 
tion of  the  first  mortgage.  Frazee 
v.  Inslee,  289 

II  f.  Equity  of  Redemption,  Fore- 
closure  and  bale. 

19.  Where  a  party  has  obtained  a 
decree  of  foreclosure,  under  which 
the    mortgaged    premises    have 
been  sold,  it  is  too  late  to  ques- 
tion the  validity  of  the  mortgage. 
Gettv.  Flock,  108 


20,  A  purchaser  of  the  equity  of  re- 
demption at  sheriff's  sale,  takes 
the  property  cum  onere,  and  ac- 
quires no  'rights  beyond  what 
remain  in  the  mortgagor  after  sat- 
isfying the  incumbrance  out  of 
the  land.  HarUhorne  v.  Hart- 
shornc,  349 

2"L  The  purchaser  of  the  equity  of 
redemption  will  in  no  event  be 
permitted  to  hold  the  land  dis- 
charged of  the  incumbrance;  and 
if  he  attempt  to  make  the  debt 
by  buying  up  the  bond  and  mort- 
gage, and  recovering  the  amount 
unjustly  out  of  the  obligor,  the 
debt  will  in  his  hands  be  consid- 
ered extinguished.  ib. 

22.  It   seems  that  the  purchser  of 
the  equity  of  redemption  is  liable 
to  the  extent  of  the  land  purchas- 
ed,  and  no  further,  and  that  he 
will  at  all  times  be  discharged 
upon  releasing  the  land.  ib. 

23.  If  the  purchaser  of  the  equity 
of  redemption  take  an  assignment 
of  the  mortgage,  the  debt  is  not 
thereby  merged  or  extinguished, 
and  the  widow  is  entitled  to  her 
dower  in  the  equity  of  redemp- 
tion only,  subject  to  the  mort- 
gage, ib. 

24.  Where  a  mortgage  is  given  for 
the  purchase  money  of  land,  con- 
veyed by  the  mortgagee  to  the 
mortgagor  with  covenant  against 
incnmbrances,   if  it  appear  that 
at  the  time  of  the  conveyance  the 
premises  were  subject  to  a  prior 
incumbrance,   a  decree  of  fore- 
closure will  not  be  made  upon 
such  mortgage  until  the  prior  in- 
cumbrance  is    satisfied,    or  the 
prior  incumbrance    will,    by  tho 
decree,  bo  directed  to  be  first  paid 
out  of  tho  proceeds  of  the  sale, 
and  the  amount  deducted  from 
the  sum  due  upon  the  mortgage. 
Van  Riper  v.  Williams,         407 


INDEX. 


647 


25.  Where  a  mortgage  is  given  to 
secure  the   purchase    money  of 
land,  an  allegation  of  an  outstand- 
ing title  against  the  land    pur- 
chased,  is  no  objection  to  a  de- 
cree of  foreclosure ;   aliter,  if  the 
purchaser  is  evicted   or  an  ejects 
inent  actually  commenced  against 
him.      Van     Wagjoner    v.     Me 
Even,  412 

26.  Where  land  is  conveyed  with 
covenant  of  warranty,  and  the 
purchasers  are  evicted  from  part 
of  the  premises,  or  a  judgment  in 
ejectment    is    recovered  &guinst 
them ;  on  a  bill  by  the  vendor  for 
a  foreclosure  of  a  mortgage  given 
for  a  part  of  the  purchase  money, 
equity  will  permit  the  purchasers, 
or  those  claiming  tinder  them,  to 
avail  themselves  of  the  failure  of 
title  as  a  defence  against  a  recov- 
ery upon  the  mortgage;  and  will 
either  stay  the  proceedings  upon 
the  mortgage  until  the  damages 
arising  from  the  failure  of  title 
are  ascertained  by  a  suit  at  law, 
or  will  direct  n  issue,  or  a  refer- 
ence to  a  master,  to  ascertain  the 
damages,  before  decreeing  a  re- 
covery upon  the  mortgage.     As 
a  general  rule,  it  will  be  referred 
to  a  master  to  ascertain  the  dam- 
ages, unless  the  complainant  re- 
quires a  trial  at  law.     Coster  v. 
Manrot  Manufacturing  Co.     467 

27.  But  if  the  bill  for  foreclosure  bo 
filed  by  an  assignee  of  the  mort- 
gage without  notice,  will  equity, 
under  such  circumstances,  inter- 
fere?—^ ib. 

28.  An  actual  eviction  is  not  ne- 
cessary to  entitle  the  defendant 
to  his  damages  on  the  covenant, 
provided  there  has  been  u  trial 
and     judgment      in     ejectment, 
though  the  court  will  not  act  upon 
a  mere  allegation  that  the  title  is 
defective.  ib. 

Vide  EVIUKKOT,  13.    HUSBAND  A»D 
WIFE,  3. 


N. 

NEW  TRIAL. 

Vide  ISSUE,  5,  7, 13. 

NUISANCE. 

1.  This  court,  if  a  proper  case  be 
disclosed,    will  interfere   by  in- 
junction to  prevent  the  obstruc- 
tion  of  ancient  lights,      Itoleson 
v.  Pitteiiger,  67 

2.  Chancery   will  interfere  by  in- 
junction  to  prevent  or  remove  a 
private  nuisance,  where  the  nuis- 
ance has  been  erected  to  the  pre- 
judice or  annoyance  of  a  right 
which  the  other  party  had  long 
previously  enjoyed.  ib. 

3.  It  must  be  a  strong  and  mischi€T- 
ous  case,  of  pressing  necessity,  or 
the  right  roust  have   been  previ- 
ously established  at  law,  to  en- 
title the  party  to  call  to  his  aid 
the  jurisdiction  of  this  court,   id. 

4.  Where  ancient  lights  have  exist- 
ed for  upwards  of  twenty  years, 
undisturbed,  the  owner  of  an  ad-     f 
joining  lot  has  no  right  to  ob- 
struct them;  and  particularly  so, 

if  the  adjoining  lot  was  owned  by 
the  person  who  built  the  house 
containing  the  ancient  lights,  at 
the  time  of  building,  and  was 
subsequently  sold  by  him.  ib. 

5.  Whether  this  court  will  inter- 
fere by  injunction  to  prevent  the 
nuisance,  or  leave  the  party  to 
establish  his  right  at  law,  irm«t 
depend  on  the  particular  circum- 
stances of  each  case.  & 

O. 

ONUS  PROBANDI. 

Vide  ETIDKHOE.    U«our,  5. 

ORPHAN'S  COURT. 


548 


INDEX. 


Vide  EXECUTORS  AND  ADMINISTRA- 
TOES,  1,  2,  3,  11—15.    PRERO- 
GATIVE COXTET,  1,  2,  8. 
ORDINARY. 

Vide  PREROGATIVE  COUET. 
P. 

PARTIES. 

Vide,  PLEADING,  I. 

PARTITION. 

1.  In  equity  there  is  no  necessity 
that  a  partition  should  be  so  made 
as  to  give  each  party  a  share 
in  every  part  of  the  property. 
Each  party  must  have  their  share 
value,  which  is  all  that  is  requir- 
ed. Brookfield  v.  Williams.  341 

2  To  make  the  value  of  the  sever- 
al shares  equal,  one  party  mny  be 
required,  under  certain  circum- 
stances, to  pay  money  on  his 
share  to  those  who  receive  a  share 
of  less  value.  ib. 

8.  An  equitable  partition  may  be 
made  so  as  to  assign  that  portion 
of  the  land  on  which  the  im- 
provements are  placed  to  the 
person  who  has  made  them.  «J. 

4.  Equity  is  not  the  proper  forum, 
nor  is  a  bill  for  partition  the  pro- 
per action,  for  trying  the  legal  ti- 
tle to  lands,  Mannert  T.  Man- 
ners, 384 

B.  Wher*»,  upon  a  bill  for  partition 
the  defendants  dispute  the  com- 
plainants* title,  the  rule  in  equity 
us  to  retain  the  suit  nntil  the 
complainants  shall  establish  their 
right  at  law.  -il>. 

Vide  JFEI&DICTION,  1. 

PARTNERSHIP. 
3.  In  o^nity  the  creditors  of  apart- 


nership  have  a  right  to  be  first 
paid  out  of  the  partnership  prop- 
erty, in  preference  to  the  creditors* 
of  the  individual  partners,  Cam- 
mack  v.  Johnston,  163 

2.  After  the  debts  of  a  firm  are  sat- 
isfied, the  residue  of  the  property 
belongs  to  the  individual  part- 
ners, and  can  then,  and  then  only, 
be  applied  to  the  payment  of  their 
individual  creditors.  «'&. 

3.  Whether  an  injunction  ought  to> 
issue  upon  a  bill  for  an  account  of 
the   partnership  to  restrain  the 
sheriff^  upon  an  execution  at  law 
against  one  of  the  partners,  from 
selling  the  partnership   proper- 
ty, ib. 

4.  As  respects  third  persons,  a  dif- 
ferent rule  prevails  in  regard  to- 
silent    partnerships    from    that 
which  obtains  in  the  case  of  open 
partnerships.  *'&•. 

&.  At  law,  the  visible  partner,  if 
sued  alone,  cannot  plead!  in  abate- 
ment, that  he  has  a  dormant  part- 
ner; and  a  creditor  may  at  his 
election  sue  either  the  visible 
partner  alone,  or  join  any  latent 
partner  he  may  discover.  »&, 

6.  Those  funds  shall  be  liable  (to> 
the  claim  of  a  creditor)  en  which 
the  credit  is  given.  In  an  open 
partnership,  the  credit  is-  given  to> 
the  firm,  and  to  the  goods  they 
are  possessed  of,  and1  a  partner- 
ship creditor  shall  be  first  paid 
oub  of  them  but  if  the  partner 
be  unknown,  the  credit  is  giveo 
to  the  visible  partner  only,  and! 
the  goods  in  his  possession  are 
supposed  to  bo  his  own ;  and  in 
such  case,  the  discovery  of  the 
latent  partner  cannot  give  any 
any  preference  to  a  partnership 
creditor.  »&, 

1.  As  between  the  partners  them- 
selves, there  seems  to-  be  BO  rea- 


INDEX. 


549 


eon  to  make  any 'distinction  in 
their  rights,  whether  any  are 
dormant  or  not;  bat  as  to  the 
public,  it  is  necessary  to  prevent 
injustice  towards  creditors  that 
this  difference  should  be  observ- 
ed, a. 

6  The  execution  creditor  (in  the 
case  of  a  silent  partnership)  has 
his  remedy  complete  against  all 
the  effects  of  the  visible  partner, 
and  against  all  the  effects  which 
belong  to  him  and  his  dormant 
partner,  as  partners,  and  it 
makes  no  difference  whether  tho 
debt  was  contracted  by  the  debt- 
or on  the  partnership  account  or 
on  his  individual  account'  ib. 

PATERSON  BANK. 
Vide  CORPORATIONS.; 

PLEADING. 

I.  Parties.    If.  Sill.     III.  Answer. 

IV.  Plea.    V.  Demurrer. 

L  Parties. 

1.  A  complainant  in  the  suit  for  the 
mere  purpose    of    recovering  a 
legacy,  is  not  bound  to  make  the 
representatives     of    a    deceased 
co-executor,  parties,  when  he  ex- 
pressly charges  that  all  the  assets 
of  the  testator  are  in  the  hands  of 
the  surviving  executor  ;  but  such 
representatives  are  proper  parties 
whenever    such    co-executor  is 
charged   with  having  assets,  or 
when  fraud  or  collusion  is  charg- 
ed between  the  executors,  or  in  a 
case  of  insolvency.    GobU  v.  An- 
druss,  66 

2.  Upon  the  same  principle,  debtors 
to  the  testator  may    be    made 
parties,  to  reach  assets  in  their 
hands.  t'J. 

B.  This  is  a  privilege  given  to  a 
complainant  in  the  court  of  chan- 
cery, to  go  beyond  tho  party  le- 
gally bound,  to  reach  assets  in 


the  hands  of  other  persona,  out 
ot  which  his  debt  ought  to  be 
paid.  But  if  such  persons  have 
no  assets,  and  there  be  no  other 
special  ground  assigned,  they  are 
not  proper  parties.  ib. 

4.  The  mortgagor  having  disposed 
of  the  equity  of  redemption,  and 
having  no  interest  in  the  mort- 
gaged premises,  is  not  a  necessary 
party   to  a  bill    for  force. osure. 

Vreeland  v.  Loubat,  104 

5.  Can  relief  be  had  in  this  court 
against  the  representatives  of  one 
of  two  joint   debtors,   without 
making  the  other  joint  debtor  a 
party,   and  showing  by  a  return 
of  null/I   lona  that   the  money 
could  not  be  recovered  against 
her    at,    lawl — Qu,     Hazen    v. 
Durling's  adm'r,  133 

6.  An    administratrix    cannot    be 
made  a  party  complainant  in  a 
bill  with   her  co-administrators, 
without  her  consent,  and  if  ebe 
claim  adversely  to  the  prayer  of 
the  bill,  tho  court,   upon  motion, 
will  direct  her  name  to  be  stricken 
from  the  bill  as  a  complainant, 
and  to  be  inserted  as  a  defendant. 
Dare's  admrs  y.  Allen's  «cV,  288 

7.  The  general  rule,  that  all  par- 
sons who  have  an  interest  in  the 
decree  must  be  made  parties,  has 
its  exceptions,  and  will  be  con- 
trolled and  regulated  in  the  dis- 
cretion of  the  court.    StillwcU  v. 
McNeely,  305 

8.  A  mere  nominal  trustee  cannot 
bring  a  suit  in  bis  own  name, 
without  joining  his    cestui  qne 
trust  with  him.  *4. 

9.  Where  the  assignment  of  a  judg- 
ment constituting  a  lien  on  mort- 
gaged premises  is  absolute  and 
unconditional,  the  assignor  ia  not 


550 


INDEX. 


a  necessary  party  to  a  bill  for 
foreclosure.  Bruen  v.  Crane,  347 

10.  The  multiplication    of   parties 
should  be  avoided  whenever  they 
have  uo  interest  at  stake  in  the 
cause. 

11.  A  mortgagor  who  has  parted 
with  all  his  interest  in  the  mort- 
gaged   premises,    is    a  proper, 
though  not  a  necessary  party  to  a 
bill   for  foreclosure.     Cheater  v. 
King,  405 

II.  Bill. 

12.  Where  a  bill  filed  against  a  sur- 
viving   executor    for    a    legacy, 
charges  that  the  executors  ren- 
dered a  joint  account  to  the  or- 
phan's court  for  final  settlement, 
which   was  allowed;    and    also 
charges  that  all  the  assets  are  in 
the  hands  of  the  surviving  exe- 
cutor, the  latter  charge  is  material 
and  well  pleaded.     Goble  v.  An- 
druss,  66 

18.  A  charge  of  adultery  and  a 
charge  of  extreme  cruelty,  cannot 
be  united  in  the  same  bill.  De- 
camp v.  Decamp,  294 

24.  Nor  is  it  proper  to  blend  in  one 
bill,  an  application  for  a  divorce, 
with  a  prayer  for  independent 
relief  grounded  on  charges  which 
require  an  answer  under  oath.  ib. 

15.  A  bill  for  a  divorce  may  con- 
tain a  prayer  for  alimony,  and 
any  charge  made  in  the  bill  re- 
specting  property,  which  might 
affect  the  question  of   alimony, 
would  be  proper.  ib. 

III.  Answer. 

16.  The  allegations  of  an  answer 
Dot   responsive  to  the  charges  in 
the  complainant's  bill,  must  be 
sustained  by  proof.      The  answer 
can  be  of  no  avail  without  it. 
Dickey  v.  Allen,  40 


17.  Where  the  bill  alleges  the  exist- 
ence of  a  partnership,   and  prays 
an  account    of   the  partnership 
transactions ;  an  allegation  in  the 
answer,  that  by    an   agreement 
between  the  partners,  on  the  dis- 
solution of  the  partnership,  the 
complainant  was  to  pay  all  the 
debts  of  the  firm,  is  new  and  in- 
dependent matter,  not  responsive 
to  the  charges  in  the  bill.         ib. 

18.  If  the  bill  of  complaint  charges 
the  existence    of  a  partnership, 
without  stating  its  character,  an 
answer  by  the  defendants  that  the 
partnership  is  dormant  and  un- 
known to  them,   is  responsive  to 
the  bill,  and  need  not  be  sustained 
by   proof.     Cammack  v.  John- 
son,  163 

19.  An  answer,  so  far  as  it  is  a  re- 
sponse to  the  bill,  will  avail  the 
defendant,  unless  it  be  overcome 
by  the  testimony  of  witnesses : 
but  so  far  as  it  sets  up  new  mat- 
ter, must  be  proved.    Neville  v. 
Demerittt  321 

IV.  Plea, 

20.  A  former  decree  pleaded  in  bar, 
need  not  appear  to  have  been  be- 
tween precisely  the  same  parties 
with  one  to  which  it  is  pleaded, 
but  it  must  always  appear  to  have 
been  for  the  same  subject  matter. 
Matthews  v.  Robert*,  333 

21.  If  the  defendant  has  a  substan- 
tial defence  which  cannot  avail 
him  under  his  plea,  from  inaccu- 
racy in  pleading,  he  may  claim 
the  full  benefit  of  such  defence 
by  his  answer.  ib. 

22.  Under  the  statute  regulating  the 
practice  in  chancery,  the  defend- 
ant, under  the  usual  order  to  an- 
swer   after  demurrer  overruled, 
cannot  file  a  plea.        White  v. 
Dummer,  627 


INDEX. 


551 


V.  Demurrer. 

23.  A  demurrer  to  a  bill  in  -equity 
admits  every  charge  in  the  bill 
which  is  well  pleaded.      Goble  v. 
Andruss,  66 

24.  Under  a  general  demurrer  for 
want  of  equity,  a  demurrer  ore 
tenus  made  be  made  for  want  of 
parties.  StiUwell  v.  McNeely,  305 

PRACTICE. 

I.  Process,  Abatement,  Bill,  Amen- 
ded Bill.  Supplemental  Bill,  and 
Bill  of  Retitor. 

IL  Motions,  Orders,  Rules,  Notice* 
Service  and  Publication  of. 

III.  Taking  Testimony,  Affidavits, 
Objections  to  Witnesses,  and  other 
intermediate  proceedings. 

IV.  'Reference  to  a  Master,  Report, 
Exceptions,  &c.,  Decree. 

V.  Relief— now  granted. 

VI.  Mo.iey  paid  into  Court,  Sur- 
plus Money. 

VII.  Court  of  Appeals. 

I.  Process,  Abatement,  Pill,  Amen- 
ded Bill,    Supplemental   Bill, 
and  Bill  of  Revivor. 

1.  It  seems,   that  where    the   bill 
charges   that  one  of  two   joint 
debtors  is  insolvent,    the  court, 
especially  in  favor  of  a  surety, 
will  sustain  the  bill  against  the 
representatives    of     the     other. 
Hazen  v.  Durling't  adm'r.      133 

2.  A.  general  creditor,  having  filed 
his  bill  for  relief  against  a  judg- 
ment confessed  by  his  debtor,  as 
fraudulent,  was  permitted,  after  a 
decree  pro  confesso  against  the 
defendants,  and  an  ex  parte  hear- 
ing npou  the  evidence,  to  file  a 
supplemental  bill,  in  order  to  in- 
corporate in  the  record  the  facts, 
that  after  the  eomflaeneement  of 


his  suit  in  this  court,  the  com- 
plainant obtained  a  judgment  and 
sued  out  execution  at  law.  Ed- 
gar v.  Cletenger,  258 

3.  Where  the  complainant  omits  to 
have  the  subpoena  served  and  re- 
turned at  the  term  to  which  it 
was  made  returnable,  the  injunc- 
tion will  bo  dissolved.     West  v. 
Smith,  309 

4.  It  is  not  essential  that  a  subpoena 
be  served  by  the  sheriff  or  coro- 
ner.    It  may  be  served  by  a  pri- 
vate person,  but  in  such  case  an 
affidavit  must  be  made  of  the 
manner  and  time  of  service,  and 
upon  the  return  of  the  writ  a  rule 
must  be  taken  on  the  defendant 
to  plead,  answer  or  demur,  at  or 
before  the  next  stated  term  of  the 
court.  -ib. 

5.  The  fourth  section  of  the  act,  en- 
titled,  "An  act  to  prevent,    in 
certain   cases  the    abatement  of 
suits  and  reversal  of  judgments," 
(Rev.  L'iwst   164.)  is    intended  to 
apply  to  cases  where  by  the  act  of 
law  the  cause  of  action  survives. 
The  act  is  designed  to  save  the 
necessity  of  filing  bills  of  reviver, 
not  supplemental  bills.    Rots  v. 
Satfield.  363 

6.  If  a  suit  becomes  abated,  and  no- 
thing  but  the  death  of  the  party 
is  necessary  to  be  established  to 
show  the  liability  of  the  survivors 

a  bill  of  revivor  alone  is  suffici-  / 
ent;  but  where  new  matter  must 
be  shown  and   proved,   there  a 
supplemental  bill  must  bo  filed,  ib. 

Where  the  bill  has  been  sworn  to, 
and  an  injunction  issued  and  serv- 
ed, no  alteration  shall  be  made  in 
the  original  bill  on  file ;  but  tho 
amended  bill  most  be  engrossed 
anew,  and  annexed  to  the  origi- 
nal. Lay  ton  v.  leans,  367 


552 


II.  Motions,  Orders,  Rules,  Notices, 
and.  Publication  of. 


7.  Upon  a  motion  tc  dissolve  an  in- 
junction on  the  ground  that 
the  snbprena  has  not  been  serv- 
ed, the  sheriff's  return  to  the 
subpoena  is  conclusive,  and  can- 
not be  contradicted  by  affidavits, 
unlesc  collusion  be  shown  between 
the  sheriff  and  the  complainant 
or  his  solicitor.  Corey  v.  Voor- 
hees,  5 

8  Notice  of  argument  left  at  the 
solicitor's  dwelling-house,  in  his 
absence,  is  good  service.  Taylor 
T.  Thomas,  106 

9.  Notice  good,  though  dated  on 
Sunday.  «&. 

10.  On  tne  hearing  of  a  motion  to 
dissolve  an  injunction,  upon  the 
defendant's  answer  to  the  bill, 
the  charges  in  the  bill,  unless 
met  by  the  answer,  are  to  be 
taken  as  true,  and  the  allegations 
in  the  answer  we  entitled  to  the 
van*  credit.      Menem,  v.  Smith* 

182 

11.  An  order  allowing  a  defendant 
f>  examine  his  co-defendant  as  a 
witness,  will  always  be  granted 
upon  a  suggestion  that  the  party 
to  be  examined  has  no  interest  in 
the  cause,  leaving  the  question  oi 
interest  to  be  settled  at  the  bear- 
ing upon  the  proofs.      Neville  T. 
Demerit,  821 

12.  Where  any  of  the  defendants 
reside  in  this  state,  and  arenerved 
with  process,  it  is  not  necessary, 
imliiM    under    special    circum- 
stances, that  the  order  for  the 
appearance  of  absent  defendants 
should  be  published  in  any  news- 
paper out  of  the  statre.    Foreign 
publication  is  only  required  where 
all  of  the  defendants  reside  out 
of  th*  state.      Wetmt*re  v.  Dyer, 

an 


13.  A  motion  to  dissolve  an  injunc- 
tion will  be  entertained  before 
answer  filed.   WoodhuU  v.  Ncafie, 

409 

14.  Under  the  statute  of  New-Jer- 
sey regulating  the  practice   in 
chancery,  the  defendant,   under 
the  usual  order  to  answer  after 
demurrer  overruled,  cannot  file  a 
plea.      White  r.  J)ummer,      627 

III.  Taking  Testimony,  Affidavits^ 
Objections  to    Witnesses,   and 
other  intermediate  proceed- 
ings. 

15.  An  objection  to  the  competency 
of  a  witness  ought  to  be  made  at 
the  time  of  taking  the  deposition? 
—  Qu.     HoweWs  ex'rs  T.  Auten, 

44 

16.  The  general  rule  is,  that  when 
an  injunction  has  been  obtained 
upon  the  complainant's  affidavit 
alone,  and  a  motion  is  made  by 
the  defendant,  upon  filing  his  an- 
swer, to  dissolve  the  injunction, 
affidavits  cannot  be  read  upon 
the   argument   of    the   motion, 
either  in  support  of  the  bill  or 
answer.    Menem  v.  Smith,     192 

17.  The  rule  admits  of  exceptions. 
In  cases  of  waste,  affidavits  are 
admissible  in  support  of  the  bill, 
to  prove  acts  of  waste.  *&. 

18.  But  affidavit*  will  not  be  ad. 
mitted  in  support  of  allegations 
contained  in  the  bill,  and  not  ex- 
pressly  denied  by  the   answer. 
The  practice  of  this  court   i*  in 
conformity  with  the  rule  adopted 
by  the  supreme   court  of  the 
United  States,  viz. :  that  the  alle- 
gations of  the  bill  wiJ  be  taken 
as  true  when  they  are  not  met 
and  denied  by  the  answer;  and 
if  the  answer  does  not  fully  meet 
the  case  disclosed  by  the  bin,  the 
injunction  will  be  sustained,    ft. 


INDEX. 


553 


19.  Where  new  matter  is  contained 
in  the  answer,  not  responsive  to 
the  bill,  which  is  relied  upon  as 
a  .round  for  setting  aside  the  in- 
junction,  the  complainant  may 
read  affidavits  in  contradiction  of 
such  new  trotter.  ib. 

20.  On  an  application,  by  petition, 
verified  by  the  affidavit  of  the 
party,  to  set  aside  a  sale,  the  ma- 
terial facts  alleged  in  the  petition 
must  be  proven.    The  affidavit  of 
the  party,  except  as  to  facts  pe- 
culiarly within  his  own  knowl- 
edge, must  be  supported  by  other 
evidence.    COM  v.  Haltted,    811 

21.  Where  the  interest  of  a  witness 
may  be  released  by  the  party  of* 
fering  him,  and  no  objection  is 
made  to  the  witness  on  his  exam- 
ination,   an  objection  made  for 
the  first  time  at  the  hearing,  will 
not  be  sustained,  without  giving 
the  party  offering  him  an  oppor- 
tunity to  release  that  interest  and 
to  re-examine  the  witness,     N«- 
tiU*  v.  Dtmtntl,  821 

S3.  Parties  are  always  examined  as 
witnesses,  by  the  very  terms  of 
the  order,  subject  to  all  just  ex- 
ceptions at  the  hearing.  But  wit- 
nesses, not  parties,  should  be  ob- 
jected to  at  the  time  of  their  ex- 
amination. H>. 

S3.  A  mere  trustee  may  always  be 
examined  as  a  witness  by  a  co- 
defendant.  If  it  turns  out  upon 
the  hearing  that  he  has  an  inter- 
est in  the  cause— that  a  decree 
may  be  obtained  against  him.  al- 
though it  be  for  costs  only,  his 
testimony  will  be  excluded.*  & 

24  A  complainant  will  not  be  or- 
dered to  answer  interrogatories 
which,  are  not  tiled  within  fifteen 
days  after  filing  the  answer,  un- 

«  kss  a  sufficient  reason  be  disclos- 
ed to  excuse  the  neglect  on  the 
part  of  UM  defendant  to  file  his 


interrogatories  pursuant  to  the 
rule  of  the  court.  Pkelpt  v. 
Curtu,  '  3S7 

IV.  Efferent*  to  a  Matter.  Report^ 
Exception*,  <£&.  DeorM. 

25.  On  a  bill  for  foreclosure,  against 
infants  and  other?,    where  any 
of  the  defendants  have  answered. 
the  complainant  cannot  enter  a 
rule  of  course  to  refer  the  cause 
to  a  master,  except  by  consent  of 
such  defendants  as  have  answer- 
ed, or  their  solicitor.    laitoutSt 
er'rt  v.  Haycock,  105 

26.  Exceptions  to  the  master's  re- 
port must  bo  filed  within  eight 
days.    Taylor  v.  Thomat,         106 

27.  A  decree  pro  confesso  may  be 
taken  at  any  time,  after  the  time 
limited  for  the  defendant  to  plead, 
answer   or  demur,  has  expired. 
It  may  be  taken  without  notice* 
and  as  of  course,  unless  it  appear 
that  some  prejudice  will  thereby 
accrue  to  the  adverse  party.  Oak- 

- 


28.  Where  the  complainant's  mort- 
gage covers  several  parcels  of 
land,  which  are  covered  by  sub- 
sequent incumbranccs,  the  decree 
may  direct  the  whole  of  the  pro- 
perty to  be  sold,  and  the  proceeds 
applied  to  satisfy  as  well  the  sub- 
sequent incutnbrances  as  the  mort- 
gage of  tho  complainant  ;  and  al- 
though the-  complainant's  mort- 
gage is  satisfied  by  the  sale  of 
part  of  the  premises,  the  sheriff 
may  proceed  to  a  sale  of  the  re- 
mainder to  satisfy  subsequent  in- 
cumbrances- Ely  T.  Perrinf,  396 

39.  But  if  any  of  the  defendant's 
mortgages  cover  more  property 
than  the  complainant's  mortgage, 
Uie  decree  cannot  direct  a  asle  of 
that  part  of  the  premises  nofeov- 
ered  by  the  complainant's  mort- 

r    r--    " 


554 


INDEX. 


30.  The  decree  must  not  go  beyond 
the  relief  prayed  in  the  bill,  and 
that  is  confined  to  a  foreclosure 
and  sale  of  the  premises  described 
iu  the  bill.  ib. 

V.  Relief— how   granted. 

31.  On  a  bill  filed  to  establish  a 
will  devising  real  estate  the  court 
may  grant  relief  either  by  making 
an  injunction  perpetual,  restrain- 
ing the  defendants  from  prosecut- 
ing any  suit  to  disturb  the  com- 
plainants  in    the    possession   of 
their  respective  tracts,  or  by  di- 
recting a  release  on  the  part  of 
the  defendants  of  all  their  right 
in  said  lands  to  be  made  to  the 
complainants,    or    by    a   decree 
establishing  the  will  in    all  its 
parts.    The  last  course  should  be 
adopted  wherever  the  contents 
of  the  will   can  be  ascertained. 
Bailey  v.  Stiles,  220 

32.  Bill  filed  for  relief  on  the  ground 
of  fraud;   relief  granted  on  the 
ground  of  mistake.  Bead'*  adm^rs 
v.  Cramer,  277 

VI,  Money  paid  into  Court,  Surplus 
Money. 

33.  "When  the  amount  awarded  to 
be  paid  by  a  railroad  company 
under  the   act  of  incorporation, 
for  land  taken  or  damages  done 
by  them,  is  directed  by  the  statute 
to  be  paid  into  the  court  of  chan- 
cery for  the  use  of  the  owner  or 
owners  of  the  land,  no  notice  to 
the  company  is  necessary,  of  an 
application  by  the  owners,  for  an 
order  upon  the  clerk  to  pay  over 
the  money  so  deposited.  Etparte, 
Van  Vortft  heir*,  292 

34.  An  order  to  pay  over  the  money 
so  deposited   will  not  be  made, 
without  a  reference  to  a  master 
to  ascertain  the  rights  of  tho  ap- 
plicants. '2>.  , 


35.  Where,  upon  petition  for  sur- 
plus money,  an  order  of  reference 
is  made  to  a  master,  the  re  aster 
must  make  his  report,  and  a  final 
order  of  the  court  be  made  in  the 
premises,  before  the  money   can 
be   paid   over.      Ex  parte,    Al- 
len, 388 

VII.    Court  of  Appeals. 

36.  This  court  will  give  to  &  de- 
cision   of  the   conrt  of  appeals 
made  in  the  same  cause,  its  fair 
and  just  legal  effect.     Snowhill'a 
heirs  v.  Snowhill'a  ex'er  30 

37.  Where  a  decree  of  the  chancel- 
lor, allowing  a  general  demurrer, 
is  reversed  in  tho  court  of  ap- 
peals.and  the  demurrer  overruled, 
the  court  of  appeals  shoulddirect 
the  record  and  proceedings  in  the 
cause  to  be  remitted  to  the  court 
of  chancery.  ib. 

Vide  INJUNCTION     ISSUE.    PAETI- 

TION,     2,    5.      PBEIJOOATIVK 

COUBT.    RECEIVERS,  2. 

PREROGATIVE  COURT. 

1.  The  appeal  given  to  the  prerog- 
ative court  by  the  twenty-seventh 
section  of  the  act,  entitled  "  An 
act  to  ascertain  the  power  and 
authority  of  the  ordinary  and  his 
surrogates,  to  regulate  the  juris- 
diction of  the  prerogative  court, 
and  to  establish  an  orphan's  court 
in  the    several  counties  of  this 
state,"   passed  June  13th,  1820, 
(Rev.  Laws,  784,)  authorizes  the 
ordinary  to  look  into  tho  merits 
of  the  decision  made  by   the  or- 
phan's court  in  granting  letters 
of  guardianship,  and  to  affirm  or 
set  aside  and  change  the  appoint- 
ment made  by  tho  orphan's  court 
as  the  ordinary  shall  think  the 
legal  and  just  rights  of  tho  parties 
require.    Read  v.  Drake,        78 

2.  In  cases  of  disputed  claims  to  the 
right  of  guardianship,  the  depo- 


INDEX. 


552 


sitions  taken  at  the  hearing 
ehould  bo  reduced  to  writing  by 
the  surrogate,  and  be  sent  up 
•with  the  papers  on  the  appeal,  ib. 

3.  Whether  depositions  are  taken 
and  sent  up  or  not,  the  ordinary 
may,  in  his  discretion,  allow  fur- 
ther depositions  to  be  taken  on 
notice,  before  the  surrogate,  to 
be  used  on  the  hearing  of  the  ap- 
peal, ib. 

PROBATE. 
Vide  WILL,  1. 

PROCESS. 

Vide  PRACTICE,  I. 

PROMISSORY  NOTE. 

Vide  EVIDENCE,  9. 

PUBLICATION. 
Vide  PRACTICE,  II. 

PURCHASER. 
Vide  VENDOR  AND  PURCHASER. 

R. 
RECEIVERS, 

1.  Receivers,  being  officers  of  this 
court,  are  at  all  limes  entitled  to, 
and  must  receive,  its  advice  and 
protection.      Cammack  v.  John- 
son, 163 

2.  The  authority  of  appointing  re- 
ceivers of  an  incorporated  com- 
pany, under  the  act  of  February 
16th,  182'.),  is  a  delicate  one,  aud 
should   be   cautiously  exercised. 
It  by  no  means  follows,  that,  be- 
cause an  injunction   is  granted, 
receivers  should   be    appointed. 
Oakley  v.  PaUrson  JBank,      173 

8.  That  one  of  the  directors  is  in- 
debted to  the  bank;  that  ho  is 
security  for  his  son,  who  was 
formerly  cashier,  and  that  he  is 
using  means  to  avoid  responsibil- 


ity in  that  respect,  and  that  there 
is  division  and  discord  in  the 
board  of  directors,  affords  no  just 
ground  for  divesting  the  board  of 
the  property  and  vesting  it  in  re- 
ceivers, ib. 

4.  In  the  appointment  of  receivers, 
the  court  will  not  rest  upon  affi- 
davits stating,  as  matters  of  be- 
lief, that  great  frauds  have  been 
committed    against     the     bank, 
without  stating  by  whom  com- 
mitted, or  in  what  those  fraud* 
consist.  ib. 

5.  Under  the  statute,  the  complain- 
ant may,  upon  any  new  state  of 
facts,  renew  his  implication  for 
the  appointment  ot  receivers,  ib. 

REDEMPTION    (EQUITY    OF.) 

Vide  MORTGAGE,  IIL 

REFERENCE  TO  MASTER. 

Vide  PRACTICE,  IV. 

RELIEF. 
Vide  PRACTICE,  ^V. 

REPORT  (MASTER'S.) 
Vide  PRACTICE,  IV. 

REVIVOR  (BILL  OF.) 
Vide  PRACTICE,  1. 

S. 

SALE  OF  LAND. 

Vide  EXEOCTOUS  AND  ADMINISTRA* 

TORS,  9.      SHERIFF  AND  SIIEB- 

IFF'S  SALE.     MORTGAGE, 

III. 

SHERIFF  AND  SHERIFFS 
SALE. 

1.  Judgment  and  execution  credi- 
tors ot  a  defendant  in  execution, 
whose  property  lias  been  sold  bj 


556 


INDEX. 


the  sheriff,  stand  in  a  position 
which  fully  entitles  them  to  be 
heard  upon  an  application  for  re- 
lief against  the  sheriff's  sale;  and 
if  the  sale  is  in  any  respect  ille- 
gal, it  may  be  set  aside  at  their 
instance.  Merwin  v.  Smith,  182 

2.  Where  the  sheriff's    advertise- 
ment,   after    specifying   sundry 
parcels  of  land  to  bo  sold  by  the 
sheriff,  adds,  "  together  with  all 
his   (the  defendant's)  other  real 
estate  in  the  county  of  Atlantic, 
ot  which  a  more  particular  des- 
cription will  be  given  on  the  day 
ol  sale,"  it  secrn?  that  the  adver- 
tisement is  detective,  and  insuffi- 
cient to  authorize  the  sale  of  any 
lands  except  those  specified  in  the 
advertisement.  ib. 

3.  Some  description,  by  which  the 
property  may  be  known,  though 
imperfect  in  itself,  is  necessary,  ib. 

4.  The  discretion   confided  to  the 
sheriff  as  a  public  officer,  in  sell- 
ing property,  must  not  be  unne- 
cessarily    or    hastily    interfered 
with,   nor  without  the    charges 
(against  his  conduct)  being  sus- 
tained by  indisputable  evidence. 
A  sale  by  a  sheriff,  upon  execu- 
tion,  in  one  parcel,   of  a  large 
quantity  of  the  defendant's  prop- 
'erty,  which  is  readily  susceptible 
of  division,  can  never  be  justified 
upon  any  other  ground  than  as 
being  the  best  mode  for  making  it 
bring  the  most  money.  ib. 

5.  A  property  may  be  so  circum- 
stanced— one  part  so  dependent 
on  the  other— as  to  require  a  sale 
in  large  parcels  ;  but  the  general 
:nle  is,   that  it  must  be  sold  in 
different  parcels  if  plainly  divisi- 
ble, ib. 

ft.  A  sheriff  cannot  require  security 
of  a  duly  authorized  agent  of  the 
plaintiff  in  execution,  for  the  per- 
formance of  his  contract,  nor 


can  he  refuse  the  bid  of  such  agent 
for  the  want  of  the  required  secu- 
rity. &f 

7.  The  exercise  of  the  sheriff's  dis- 
cretion must  he  a  legal  one,  and 
so  controlled  as  to  work  no   in- 
justice or  oppression.  ib. 

8.  A  sheriff  may  refuse  to  take  the 
bid  of  an  irresponsible  man,  or  of 
any  one  when  he  is  well  satisfied 
that  the   sale  could  only  be  em- 
barrassed by  accepting  it.         ib. 

9.  No  exercise  of  the  power  of  tho 
court  can  be  plainer  than  that  of 
controlling  sales  by  public  officers 
on  its  own  process.    Seaman  v. 

jins.  214 


10.  The  practice    of   the  English 
chancery,  of  opening  sales  upon 
an  offer  made  to  bid   more   for 
the  property,  without  any  allega- 
tion of  surprise  or  fraud,  has  net 
been  adopted  in  this  state.        il>. 

11.  To  justify  the  interference  ot 
the  court,   there  must  be  fraud, 
mistake,   or  some  accident,    by 
which  the  rights  of  parties  have 
been  affected.  ib. 

12.  Sale  set  aside  when  the  agent 
of  an  incumbrancer,  whose  inter- 
ests were  prejudiced  by  the  sale, 
and  who  intended  to  purchase, 
was  prevented  from  attending  tho 
sale  by  accident  and  by  an  unin- 
tentional mistake  of  the  complain- 
ant's solicitor.  ib. 

13.  The  discretion  vested  by  law  in 
the  sheriff  is  a  legal   discretion, 
and    the  court   will  not  permit 
such   an  exercise  of  it  as  shall 
work  injustice  and  wrong.        ib, 

14.  It  is  not  necessary  that  adver- 
tisements of  the  sale  of  real  estate 
by  a  sheriff  or  a  master  in  chan- 
cery, should  be  signed  by  the  offi- 


INDEX. 


657 


cer  with  its  own  proper  signature. 
Whether  the  officer's  name  is 
signed  to  tho  advertisement  by 
himself,  or  printed,  or  signed  by 
another,  is  immaterial.  In  either 
case  it  is  a  virtual  signing  by  the 
officer,  Coxe  v.  Halsted,  311 

15.  Where    a  salo  by  a  sheriff  or 
master  is  adjourned,  no  pub  ica- 
tion  of  the  adjournment  is  necessa- 
ry, ib. 

16.  Where  a  sale  is  advertised  for  a 
specified  day  between  the  hours  of 
twelve  and  fine  o'clocJc  in  the  qfter- 
noon,  and  the.property  is  sold  in 
pursuance  of  such  advertisement, 
the  sale  will  not  be  set  aside,  al- 
though there  is  a  propriety  and 
convenience)      in     specifying    a 

.    particular  hour  between  twelve 
•    and  five  o'clock  for  the  sale.     »'&. 

17.  Nor  will  a  sale  by  an  officer  be 
set  aside   because  the  terms  of 
sale  are  unusually  strict  or  severe, 
if  the  circumstances  of  the  case 
case  call  for  rigid  measures,  and 
no  design  is  manifested  to  oppress 
dr  injure  the  defendants.  «J. 

18.  Where  a  tract  of  land  is  divided 
into  distinct  parcels,  it  must  be 
sold  in  that  way.  t&. 

19.  A  refusal   by  the  sheriff  to  de- 
liver a  deed  to  the  purchaser  at  a 
sheriffs  sale,  when  rightfully  de- 
manded,  will    not    absolve    the 
purchaser  from  his  obligation  to 
comply  with  his  contract,  if  after 
such   refusal  by   the  sheriff  the 
purchaser    offer    to    accept    the 
deed.    Ely  v.  Perrine,  39G 

20.  Where  the  complainant's  mort- 
gage covers    several    parcels  of 
land,  which  are  covered  by  sub- 
sequent incumbrances,    the    de- 
cree may  direct  the  whole  of  tho 
property  to   bo    sold,    and    the 
proceeds    applied    to  satisfy    as 
well  the  subsequent  incumbran- 


ces as  the  mortgage  of  the  com- 
plainant :  and  although  the  com- 
plainant's mortgage  is  satisfied 
by  the  salo  of  part  of  the  premises, 
the  sheriff  may  proceed  to  a  salo 
of  the  remainder  to  satisfy  the 
subsequent  incumbrances.  ib. 


21.  Where  the  decree  and  execu- 
tion are  against  the  wife  of  the 
mortgagor,     and      it.  afterwards 
proves  that  her  right  in  the  mort- 
gaged premises  is  not  released,  a 
specific  performance  will  not  be 
decreed,  although  the  property 
was  sold  subject  to  all  legal  prior 
incumbrauces.  *6. 

22.  The  property  under  such  cir- 
cumstances (to  entitle  the  sheriff 
to  a  decree  against  the  purchaser 
for  a  specific  performance)  should 
be  sold  with  a  distinct  recogni- 
tion  of  the  dower  right  of  the 
wife  of  the  mortgagor.  tft. 

23.  Where  by  the  conditions  of  a 
sheriff's  salo  it  is  provided  that 
"if  tho  purchaser  do  not  comply 
with  the  conditions,  the  property 
shall  be  resold,"  tho  sheriff  is  not 
bound,  upon  a  failure  of  the  pur- 
chaser to  comply  with  the  con- 
ditions,  to  make  a  second   sale, 
though  requested  to  do  so  by  the 
defendant  in  execution.       Wood- 
hull  v.  Neafie,  409 

24.  It  is  the  duty  of  a  sheriff  to  sell 
property  plainly  divisible  in  scpor- 
ate  parcels.      Yet  where  a  sale  is 
made  in  violation  of  this  rule,  if 
made  with    tho   approbation    of 
the  owner  of  the  property,  and  if 
thirteen  years  have  elapsed  since 
the  sale,  and   the  property  has 
descended  to  the  heirs  of  tho  pur- 
chaser, the  court  will  not  for  this 
cause    alone    disturb    the    title. 
Penn  v.  Craig,'  495 

Vide  Timer   AND  TRITSTKI,  4,  6. 


558 


SPECIFIC  PERFORMANCE. 

Vide  AGREEMENT.     EVIDENCE,  1G< 

17.  LANDLORD  AND  TENANT,  1. 

SHERIFF'S  SALE,  21,  22. 

SPOLIATION. 

Vide  WILL,  7, 10. 

SUBSTITUTION 

"Vide  MORTGAGE,  I.  2. 

SUPPLEMENTAL  BILL. 

'  Vide  PRACTICE,   I. 

SURPLUS  MONEY. 

Vide  PRACTICE,  VI. 

T. 

TENANT. 

Vide  LANDLORD  AND  TENANT. 

TESTAMENTARY    CAPACITY. 

Vide  CAPACITY. 

TESTIMONY. 

Vide  EVIDENCK.  PRACTICE,  III. 
TRENTON  BANKING  COM- 
PANY. 

Vide  CORPORATIONS. 
TRUST  AND  TRUSTEE. 

1.  A  trustee  cannot  transfer  a  trust 
estate  to  his  own  use,  nor  will  he 
be  permitted  to  make  any  profit, 
gain  or  advantage  to  himself,  out 
of  the  trust  estate  in   his  hands. 
Trenton  Banking  Co.   v.    Wood- 

vff,  117 

2.  In  the  case  of  a  direct  trust,  no 
time   bars  the  claim  as  between 
the    trustee  and  his  cestui   que 
trust.      Allen's  adm'rs  v.  Wool- 
ley's  ex'rt,  209 

8.  B.  A.  executed  a  power  of  attor- 
ney to  J.  W  ,  and  thereby  placed 
her  whole  property  at  the  dispos- 


al of  the  attorney,  with  full  pow- 
er to  collect  her  choses  in  action, 
and  to  make  sale  of  her  goods  and 
chattels,  and  out  of  the  principal 
as  well  as  interest  of  the  proceeds 
to  maintain  and  support  her, 
with  a  special  provision  that  J. 
W.  should  account  whenever  re- 
quired.— Held,  that  this  is  a  di- 
rect trust,  to  which  a  plea  of  tho 
statute  of  limitations  is  not  ap- 
plicable, ib. 

4.  Where  a  bill  is  filed  for  relief 
against    a    sheriff's   sale  of  tho 
complainant's   property,  on    the 
ground  that  the  purchaser  was 
the  agent  of  the  defendant  in  exe- 
cution,  and  purchased  as  trustee 
for  him ;   it  is  no  objection  to 
granting  relief  that  the  trust  was 
not  in    writing.      Hoagland   c, 
Jfoagland,  501 

5.  Mere  inadequacy  of  price  affords 
no  presumption  that  the  property 
was  purchased  in  trust  for  the 
owner.  .  ib. 

U. 

USURY. 

1.  To  constitute  usury,  under  the 
statute  of  New- Jersey,  there  must 
be  a  contract  in  violation  of  the 
act.     UowelV»  ex'rs  v.  Auten,   44 

2.  If  a  party  agree  to  lend  money 
at  a  legal  rate  of  interest,  and  af- 
ter completing  the  contract,  and 
receiving  the  borrower's  obliga- 
tion for  the  money,  withholds  a 
part  of  the  amount  loaned,  in  vio- 
lation of  the  agreement  of  the 
parties,    the    obligation    is    not 
thereby   tainted  with  usury,  al- 
though  the  money    be  withheld 
by  the  lender  as  a  premium  for 
the  loan.  ib. 

8.  The  obligation,  in  such  case,  is 
a  valid  security  for  the  amount 
actually  advanced  upon  it,  but  no 


IXDEX. 


more.  The  borrower  will  be  en- 
titled to  a  credit  for  the  amount 
withheld  in  violation  of  the 
Agreement.  ib. 

4.  The  selling  of  poods,  or  stock,  or 
property  ot  any  kind,  at  a  price 
beyond   its  value,  as  part  of  a 
loan,  by  way  of  cover  or  pretext 
for  obtaining  more  than  the  legal 
rato  of  interest,   will  taint    the 
whole    transaction    with    usury, 
and   destroy  the   validity  of  the 
instruments  given  for  the  loan. 
Gromenor    v.   Flax,  ami    Hemp 
Manufacturing  Co.  453 

5.  Proof  that  part  of  the  loan  was 
advanced  in  goods  or  stock,  will 
not  throw  on  the  opposite  party 
the  burthen  of  proving  the  value 
of  such  goods  or  stock.    The  per- 
son charging  the  usury  must  prove 
not  only  that  the  goods  or  stock 
constituted  a  part  of  the  loan,  but 
also  that  they  were  put  off  at  a 
price  beyond  their  value.         i?>. 

Vide  EVIDENCE,  9. 

V. 
VENDOR    AND    PURCHASER. 

1.  The  vendor  of  an  estate,  from 
the  time  of  his  contract,  is  a  trus- 
tee  for  the  purchaser ;  and  the 
vendee,   as  to  the   money,    is  a 
trustee  for  the  vendor.  Hoagland 
v.  Latourette,  254 

2.  If  a  person  who  has  contracted 
to  sell  land,  sells  it  to  a  third  per- 
son, the  second  purchaser,  if  he 
have  notice  at  the  time  of  his 
purchase  of  the  previous  contract, 
will  bo  compelled   to  convey  the 
property  to  the  first  purchaser,  ib. 

3.  Being  a  purchaser  with  notice  of 
the  equitable  title  of  the  vendee 
under  the  contract,  he  stands  in 
the  place  of  the  vendor,  and  is  lia- 
ble to  the  same  equity.  i?>. 


4.  A  judgment  crediter,  with  no- 
tice, can  stand  in  no  better  si  u- 
ation  than  a  purchaser.  ib. 

6.  Articles  made  for  a  valuable  con- 
sideration, and  the  money  paid, 
will  in  equity  bind  the  estate 
and  prevail  against  any  judg- 
ment creditor  mcsne  between  the 
articles  and  the  conveyance ;  but 
consideration  paid  must  be  some- 
what adequate  to  the  thing  pur- 
chased, 'ib. 

6.  If  the  vendee  be  a  creditor  of  the 
vendor,   and  his  design  in  pur- 
chasing be  to  save  his   debt,   and 
this  be  known  to  the  second  pur- 
chaser, equity    will    regard    the 
purchase  money  as  paid  the  mo- 
ment the  contract  is  complete,  and 
a  subsequent  judgment  will  not 
attach  upon  the  purchase  money 
in  the  hands  of  the  vendee.       ib. 

7.  A  judgment  creditor  metne  be- 
tween the  articles  and  the  con- 
veyance, will   be  restrained    by 
perpetual  injunction  from  enforc- 
ing his  judgment  against  the  es- 
tate, ib. 

8.  The  owner  of  a.  tract  of  land, 
with   the   boundaries    of  which 
he  was    nnacqainted,   caused    it 
to    be   surveyed,    run    off  into 
different  lots,  and  a  map   made, 
preparatory  to  a  sale  at  auction. 
On  the    day   of    sale  the     map 
was  exhibited,  and  the  property 
sold  according  to  the  map.    A 
deed  was  prepared   by  the   ven- 
dor,  according  to  the  map,  lor  j 
one  of  the  lots,  sold  for  a  fifteen 
acre  tract  more  or  less;  but  the  ' 
description  afterwards,   and   be 
before  the  execution  of  the  deed, 
was  altered  by  the  vendor,  at  the 
instance  of  the  purchaser,  who 
was  well    acquainted    with    the 
premises,   and   who  alleged  that 
the  deed  as  originally  prepared 
did  not   cover  all  the  land  pur- 
chased by  him.    The  effect  of  t  lie 


INDEX. 


alteration  in  tlie  description  was 
to  pass  twenty-seven  acres  to  the 
purchaser  not  included  in  the  plot 
or  map  exhibited  at  the  sale,  and 
which  the  vendor  did  not  know 
belonged  to  him.  The  court  de- 
creed, that  the  vendee  should  re- 
-  convey  to  the  heirs  of  the  vendor, 
all  the  land  exceeding  the  fifteen 
acres  as  described  in  the  map  by 
which  the  sale  was  made,  and 
should  pay  the  annual  value  there- 
of from  the  time  he  took  posses- 
sion under  the  deed.  Read's 
adm'rs  v.  Cramer,  277 

9.  Where,   on   a  contract  for  the 
purchase  of  real  estate  between 
A.  and    B.,    the  deed   is    made 
to  0.  at  the  request  of  B.;  on  a 
bill  to    set  aside  the  deed    for 
fraud,  0.  will  not  stand   in   any 
other  or  better  situation  than  B. 
the  purchaser  would  have  done 
had  the  title  been  made  directly 
to  him.     Torrey  v.  Buck,       366 

10.  The  substitution  of  the  name  of 
a  third  person  in  the  deed  in  the 
place  of  the  purchaser,  and  at  his 
instance,  will  not  place  the  gran- 
tee in  the  situation  of  a  bona  fide 
purchaser  without  notice.         ib. 

11.  The  folly  and  indiscretion  of 
the  vendor  can  never  justify  the 
vendee  in  obtaining  his  property 
without  compensation.  ib. 

Vide  AGHEEMENT,  9,  10.     DEED,  4, 
6.   MORXOAQE,  I.  1,  III. 

W. 

WARD. 

Vide  GUARDIAN  AND  WARD. 
WILL. 

1.  It  in  not  indispensable  that  the 
pnrty  offering  a  will  or  codicil  for 
probate  produce  all  the  witnesses, 
provided  those  produced  prove 


its     due     a*id     legal    execution. 
Whitenack  v.  Stryker,  8 

2.  The  witnesses  must  attest  the  will 
at  the  request  of  the  testator,  but 
it  is  not  necessary  that  the  testa- 
tor should  openly   make   the  re- 
quest.      His   acquiescence  when 
the   witnesses  are  called  in  lor 
that  purpose  by  another,  is  suffi- 
cient, ib. 

3.  The  influence  acquired    over  a 
testator  by  kind  offices,  uncon- 
nected with  any  fraud  or  contriv- 
ance, can  never,  alone,  be  a  good 
ground  of  setting  aside   a  will; 
such  influence  is  lawful  and  pro- 
per.   Lowe  v,  Williamson,        82 

4.  The    influence     thus    acquired, 
though  exerted  over  a  te>tator 
above  eighty  years  of  age,  whose 
bodily  faculties  are  impaired,  and 
who,   without    good  reason,  en- 
tertains feelings    of  hostility  to 
his  family,  cannot  invalidate  the 
'will.  ib. 

5.  Where  a  testator  by  his  will  de- 
vises his  land  to  the   use  of  his 
wife  for  life,  and  directs  that  it 
shall  he  sold  upon  the  marriage 
or  death  of  the  wife,  and  the 
youngest  child  coming  of  age — 
upon   the  death  of  the  testator 
the  fee  vests  in  the  heirs.      Oest 
v.  FlocJc,  108 

0.  Whether  under  the  will  the  exe- 
cutors have  the  power  of  ma- 
king sale  or  not,  unless  the 
lands  are  devised  to  them,  they 
must  before  the  s:,lo  descend  to 
the  heirs;  and  having  so  descend- 
ed, the  heirs  have  the  power  to 
transfer  their  interest  in  the 
lands,  so  far,  at  least,  as  to  entitle 
the  alienee  to  all  their  rights, 
whatever  disposition  may  after- 
wards be  made  of  them.  ib. 

7.  In  a  caso  of  spoliation  of  a  will, 


INDEX. 


5G1 


equity  has  jurisdiction,  and  the 
will  may  be  established  in  this 
court.  Bailey  v.  Stilet,  220 

8.  In  order  to  establish  a  will  in  the 
court  of  chancery,  all  the  witnes- 
ses to  the  will,  it' within  the  pow- 
er of  the  court,  must  be  examined. 
But  if  either  of  the  witnesses  be 
dead,  or  insane,  or  without  the 
jurisdiction  of  the  court,  the  will 
may  bo   established  without  the 
evidence  of  such  witnesses.       ib. 

9.  Under  the  statute  of  New-Jer- 
cey,  it  is  requisite  to  the  due  exe- 


cution of  a  will  to  pass  real  estate, 
that  the  testator  sign  his  name  in 
•the  presence  of  the  witnesses,  ib. 

10.  On  a  bill  filed  to  establish  a 
will,  under  a  charge  of  spoliation, 
it  is  not  necessary  to  prove  that 
the  spoliation  was  committed  by 
the  individual  charged  in  the  bill, 
or  by  whom  it  was  committed. 
It  is  enough  if  the  fact  of  the  spo- 
liation be  established.  'ib, 

WITNESS.  Vide  EVIDENCE.  PRAC- 
TICE, III. 


UC  SOUTHERN  REGIONAL  UBRARY  FAT*  rr 


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